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Naidoo v Director of Public Prosecutions and Others (12180/2017) [2020] ZAKZDHC 39 (13 August 2020)

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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

 

CASE NO: 12180/2017

In the matter between:



GOVINDSAMY VENKATASAMY NAIDOO                                    APPLICANT

 

and



DIRECTOR OF PUBLIC PROSECUTIONS                                    FIRST RESPONDENT

NALINI GOVENDER ESQUIRE                                                       SECOND RESPONDENT

VINOTHERAN PILLAY                                                                     THIRD RESPONDENT

 

ORDER



The following order is made:

1.            The decision of the second respondent is hereby reviewed and set aside.

2.            It is ordered that the proceedings commence before another regional magistrate, without any further delay.

3.            There is no order made in respect of the costs of the review.



 

JUDGMENT

 

Steyn J (Nkosi J concurring):

 

[1]        In 2009, in National Director of Public Prosecutions v Zuma,[1] Harms DP, issued a firm warning to all judicial officers to confine judgments to the issues before court. The applicant in this matter launched an application for the review of a decision of the lower court, on the basis that the court a quo did not have the necessary jurisdiction to hear the application for a stay of the proceedings. As will become clear from this judgment, my colleague D Pillay J, elected to embark on a constitutional analysis of various trial and constitutional rights, whilst I elected to focus on the ground for review as averred by the applicant. I have read the judgment prepared by my colleague and, respectfully disagree with the reasoning as well as the order proposed.

 

[2]        The applicant sought the following relief, which I quote in full to contrast the approach adopted by Pillay J. Applicant asked:

1.   That the decision by the Second Respondent dated the 10th of April 2017 under Commercial Crimes Court Case Number 41/4360/2008 to refuse the application by the Applicant for a permanent stay of criminal proceedings against him, be and is hereby reviewed and/or set aside.

2.   That the aforesaid decision by the Second Respondent, be and is hereby substituted alternatively replaced with a decision that the criminal proceedings/trial in the Durban Commercial Crimes Court under case number 41/4360/2008 be and is hereby permanently stayed.

3.   Directing the First Respondent to pay the costs of this application, such costs to be paid jointly and severally with other Respondents opposing this application, and in the event of them so opposing the relief claimed.

4.   Granting the Applicant such further and/or alternative relief as the above Honourable Court may deem meet (sic).’[2] (My emphasis).

[3]        As a general rule, the review of unterminated criminal proceedings is a power which is exercised sparingly and in exceptional circumstances.[3] It is trite that an applicant who wants to succeed with a review must make out a case that he will suffer irreparable prejudice if the trial is allowed to proceed to conclusion. It is therefore incumbent on an applicant to show that his complaint falls within one of the grounds of review as defined in terms of s 22(1) of the Superior Courts Act 10 of 2013. Such grounds are:

(a)       absence of jurisdiction on the part of the court;

(b)        interest in the cause, bias, malice or corruption on the part of the presiding

judicial officer;

(c)        gross irregularity in the proceedings; and

(d)        the admission of inadmissible or incompetent evidence or the rejection of

admissible or competent evidence.’

In addition to the above grounds, an applicant may also rely on common law principles and the courts’ inherent power of review under the Constitution.[4]

[4]        At the time when the matter was heard, Mr Wolmarans, for the applicant, asked that the court only concern itself with the issue of jurisdiction of the lower court as the applicant was abandoning all other grounds including the ground of gross irregularity. Ms Shazi, for the first respondent, opposed the application and stated inter alia that, the applicant was opportunistic in relying on S v Naidoo[5] in challenging the court a quo’s jurisdiction, since it would have been absurd for the lower court to deal with the application for the production of documents requested but not with the issue of undue delay. She also relied on S v Sayed & others[6] as authority that the Supreme Court of Appeal (‘SCA’) had heard and confirmed a decision by a magistrates’ court dismissing an application for a permanent stay. Her reliance on Sayed supra is misplaced. The SCA in its ratio concerned itself with condonation, the reinstatement of a lapsed appeal and the unjudicial conduct of the regional magistrate.

Jurisdiction

[5]        Lawsa[7] deals comprehensively with the jurisdiction of our courts. For the sake of completeness, I will repeat it:

The jurisdiction of the courts is regulated by primary or “original” legislation (principally the Constitution and certain Acts of Parliament), secondary or “subordinate” legislation, and the common law. While there are a host of statutes (apart from the Constitution) which have a bearing on jurisdiction, the principal ones are the Supreme Court Act, the Magistrate’ Courts Act and the Criminal Procedure Act. Common-law principles occupy a position of pre-eminence only in the absence of statutory enactments altering them, for the provisions of the common law are overruled and displayed by valid legislative pronouncements, which are abrogative.’ (Footnotes omitted).

[6]        This review was thus brought on a very narrow issue, namely the jurisdiction of the court below to hear the application to stay the proceedings before it. Since I am respectfully unable to agree with the reasoning of Pillay J, I am obliged in light of her reasoning to consider the interplay between constitutional law, the common law and criminal procedure in the criminal process. I can do no better than the eminent scholar, Professor Steytler, who succinctly summarised the aforesaid interaction as follows:

Apart from constitutional rights that can be applied directly, criminal justice will continue to be administered in terms of statutory and common law rules of criminal procedure. The constitutional standards set by the Bill of Rights serve, then, only as a safety net and an interpretive norm. While the Bill of Rights sets the foundational norms of criminal procedure, it is no substitute for or replacement of the ordinary rules and principles of criminal procedure. Courts should apply the usual rules and principles, interpreted in the light of the Bill of Rights, and only if they do not vindicate a person’s claim, does the Bill of Rights come into play. The converse is also true; because the Bill of Rights constitutes a minimum set of guarantees, ordinary rules of criminal procedure can provide more protection than what the Constitution demands.’[8] (Footnote omitted, my emphasis).

[7]        On the issue of the jurisdiction exercised by lower courts in hearing applications to stay criminal proceedings, he states:

The power to stay proceedings falls outside the jurisdiction of the lower courts. In a number of decisions under the interim Constitution it was held that lower courts, as creatures of statute, have only those powers granted to them by statute; the Constitution does not confer additional powers to enforce fundamental rights. Thus, because no power to stay proceedings is granted by either the Magistrates’ Court Act or the CPA, this remedy is beyond their jurisdiction. A similar position prevails under the 1996 Constitution. Although it would be constitutionally permissible to enquire and rule on the conduct of an attorney-general, including the institution and conduct of a prosecution, this has to be done in terms of national legislation. In the absence of an authorising statutory provision, lower courts have no jurisdiction to order the stay of proceedings.’[9] (Footnotes omitted, my emphasis).

[8]        Another principle that should be borne in mind is s 167(5) of the Constitution. In terms of the provision, lower courts may review the constitutionality of all administrative actions by State officials but lower courts derive no direct jurisdiction from the Constitution; all powers are derived from an Act of Parliament or national legislation.[10] Before I embark on a consideration of the issues raised, it is necessary to re-affirm the limited jurisdiction of the lower courts as dealt with in Connolly v Ferguson[11] by Innes CJ at 198:

But as we have laid down upon several occasions recently, magistrates’ courts have no inherent jurisdiction, such as the superior courts in the country possess. The jurisdiction of magistrates’ courts must be deduced from the four corners of the statute under which they are constituted.’ (My emphasis).

[9]        As stated at the onset of this judgment, I disagree that issues other than those raised by the parties should be dealt with. The SCA in Four Wheel Drive Accessory Distributors CC v Rattan NO,[12] gave direction that a court should be confined to the issues raised before it. The SCA in Four Wheel Drive stated as follows:

[21] On first principles, a judgment must be confined to the issues before the court. In Slabbert, this court said:

A party has a duty to allege in the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case.”

[22] Our adversarial system of determining legal disputes is a procedural system in which parties actively and unhindered may put forward a case before an independent decision-maker. An important component of the system is the rule that the parties must frame the issues for decision and present their case, and assign to the court the role of neutral arbiter of the case presented. In Fischer, this court stated the rule as follows:

Turning then to the nature of civil litigation in our adversarial system, it is for the parties, either in the pleadings or affidavits (which serve the function of both pleadings and evidence), to set out and define the nature of the dispute, and it is for the court to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for (i)t is impermissible for a party to rely on a constitutional complaint that was not pleaded. There are cases where the parties may expand those issues by the way in which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.”’ (My emphasis, footnotes omitted).

[10]      In Fischer & another v Ramahlele & others,[13] the SCA stated:

Turning then to the nature of civil litigation in our adversarial system, it is for the parties, either in the pleadings or affidavits (which serve the function of both pleadings and evidence), to set out and define the nature of their dispute, and it is for the court to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for “(i)t is impermissible for a party to rely on a constitutional complaint that was not pleaded”. There are cases where the parties may expand those issues by the way in which they conduct the proceedings. There may also be instances where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.[14] (Footnotes omitted, my emphasis).

[11]      The majority judgment of the Constitutional Court in Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims & others[15] cautions against an approach to decide on issues not raised by any party, irrespective of how novel such argument may be.[16]

[12]      Most recently, the SCA in National Commissioner of Police & another v Gun Owners of South Africa[17] affirmed the principles of Fischer and reminded each judge of his/her duty to remain a neutral umpire in adjudicating each and every case and not to ‘descend into the arena and give the impression of acting as advocate’.[18]

[13]      In light of the aforesaid dicta, I shall only deal with the issues raised by the parties in the affidavits before court.[19] My colleague has decided that despite the parties requesting us to decide the matter on the narrow issue of jurisdiction, the following issues will be determined:

a)        What was the legal basis for the application for the permanent stay of prosecution before the magistrate?

b)         What is the approach to constitutional analysis?

c)         Does the magistrates’ court have jurisdiction under the Constitution?

d)         Does the magistrates’ court have jurisdiction under s 342A of the CPA?

e)         Cohesion between the Constitution and s 342A of the CPA?

f)          Is this court bound by Naidoo (KZNHC)?

g)         Does the doctrine of election apply?

h)         Is the magistrate’s decision to refuse the remedy of a permanent stay of prosecution reviewable?

i)          What is the appropriate order for costs?’

However, in light of the aforesaid dicta, I shall only deal with the issues raised by the parties in the affidavits before court.

Uniform rule 53

[14]      The requirements for a review in terms of Uniform rule 53 are specified in Uniform rule 53(2), which reads:

The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.’ (My emphasis).

 

[15]      The purpose of Uniform rule 53 was considered in S v Baleka & others[20] where the court held:

It created procedural means whereby persons affected by administrative or quasi - judicial orders or decisions could get the relevant evidential material before the Supreme Court. It was not intended to be the sole method by which the validity of such decisions could be attacked.[21] (My emphasis).

[16]      In Helen Suzman Foundation v Judicial Service Commission,[22] the Constitutional Court as per Madlanga J (for the majority) considered the purpose of Uniform rule 53 and held:

The purpose of rule 53 is to “facilitate and regulate applications for review”. The requirement in rule 53(1)(b) that the decision-maker file the record of decision is primarily intended to operate in favour of an applicant in review proceedings. It helps ensure that review proceedings are not launched in the dark. The record enables the applicant and the court fully and properly to assess the lawfulness of the decision-making process. It allows an applicant to interrogate the decision and, if necessary, to amend its notice of motion and supplement its grounds for review.’[23] (Footnotes omitted, my emphasis).

[17]      As I understand the majority decision as per Madlanga J, information relevant to the impugned decision must be placed before this court. In relation to the issue of relevance, the court held:

It is helpful to point out that the rule 53 process differs from normal discovery under rule 35 of the Uniform Rules of Court. Under rule 35 documents are discoverable if relevant, and relevance is determined with reference to the pleadings. So, under the rule 35 discovery process, asking for information not relevant to the pleaded case would be a fishing expedition. Rule 53 reviews are different. The rule envisages the grounds of review changing later. So, relevance is assessed as it relates to the decision sought to be reviewed, not the case pleaded in the founding affidavit.[24] (My emphasis).

The record

[18]      Uniform rule 53(1)(b) specifically provides for the presiding officer/tribunal whose decision is sought to be reviewed, to produce the record. For the sake of completeness, it reads:

53. Reviews. -

(1). . .

(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.’ (My emphasis).

[19]      In Telcordia Technologies Inc v Telkom SA Ltd[25] the court held that the grounds for any review, as well as the facts and circumstances upon which the applicant wishes to rely have to be set out in the founding affidavit, which may be amplified in a supplementary founding affidavit after receipt of the record from the presiding officer.[26]

[20]      Importantly, the SCA in Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration[27] re-affirmed that in the instance of a review, the focus is on the process and the manner in which the decision-maker reached a conclusion, rather than whether the decision is right or wrong.[28]

[21]      I shall start with the pleadings before court, more specifically the applicant’s founding affidavit. This is what he avers:

4. This application is one reviewing and setting aside the decision made by the Second Respondent, and if need be substituting it with an order that will ensure justice.

5.  To that extent, I believe the decision was biased, unfair and iniquitous, and should be reviewed and or set aside inter alia on the following grounds:

5.1) the absence of jurisdiction;

5.2) gross irregularity in the proceedings; and

5.3) bias, malice on the part of the Second Respondent.’[29] (My emphasis).

[22]      In response to the applicant’s challenge on jurisdiction, the first respondent responded in its answering affidavit as follows:

RE: Absence of Jurisdiction

15. It is the Applicant, represented by Senior Counsel who launched an application for the production of documents, alternatively the permanent stay of the criminal proceedings in the Magistrates Court, which was heard by the Second Respondent. It is only after his application for the permanent stay of prosecution was dismissed by the Second Respondent that he now states the court lacked the necessary jurisdiction to consider his application. The Applicant has caused enormous prejudice to the State by bringing the application in the lower court.’[30] (My emphasis).

[23]      The first respondent never averred nor relied on s 342A of the Criminal Procedure Act 51 of 1977[31] (‘the Act’) as a justification that the court a quo had the necessary jurisdiction to hear the matter. That is clear from the pleadings before court. In light of the first respondent’s affidavit and the averments made by it, I fail to see why this court should concern itself with s 342A of the Act or any jurisdiction bestowed onto the lower court in terms of the provision. The first respondent never relied on s 342A of the Act in its affidavit nor did it aver that the magistrate could conduct an enquiry mero motu in terms of the provision. Whether the applicant’s application has caused prejudice to the State is not the test, what should be considered is whether the court had the jurisdiction to hear the matter.

[24]      The Constitution requires of courts to function in terms of national legislation, and their rules and procedures must be derived from national legislation.[32] Jurisdiction could not have been assumed by the lower court simply because the applicant elected to bring the application before it.[33] Pillay J in her judgment places reliance on the doctrine of election as an additional reason for dismissing the review.[34] In my view, the doctrine finds application exclusively in civil disputes where the plaintiff is dominus litis and has a right to decide in which of the concurrent fora he or she wishes to enforce a claim.[35] In a criminal trial, it is the State that is dominus litis. The Director of Public Prosecution decides on criminal matters committed in his area of jurisdiction against any person and in respect of any offences, provided that the offences were committed in his area of jurisdiction. Jurisdiction therefore has a very precise meaning in the criminal process. It is predictable and is based on substantive jurisdiction, territorial jurisdiction and punitive jurisdiction. It is realistic to expect of each magistrate to know the basic principles relating to the court’s jurisdiction since it can only deal with matters that fall within the court’s jurisdiction.

[25]      Grounds 5.2 and 5.3 as per the applicant’s founding affidavit were abandoned by the applicant as alluded to earlier in this judgment. The only issue that was argued by the parties was whether the regional magistrate had the necessary jurisdiction to hear an application for a stay of the proceedings that falls outside the scope of s 342A of the Act. At the onset, the parties agreed that the record was unnecessarily voluminous and that the supplementary affidavits that were filed without the court’s permission should not be considered for purposes of the review. The parties were ad idem that the record was sufficiently complete for hearing of the issue of jurisdiction.

[26]      The review application brought before us is not in strict compliance with Uniform rule 53. As stated earlier, in the founding papers filed in the application, the applicant avers that he launched an application for the production of documents, alternatively, a stay of the criminal proceedings, which application was heard and decided on by the second respondent on 10 April 2017.[36]

[27]      The applicant unequivocally states in his affidavit:

The application was not based on an undue delay in terms of section 342A of the Act. The application was premised on the basis that the lack of adequate facilities for me to prepare for trial and my inability to adduce and challenge evidence.’[37] (My emphasis).

[28]      The applicant’s founding affidavit states clearly that the regional court was not empowered to hear the application. The record in my view is sufficiently complete to hear the review.

[29]      The affidavit that served before the regional court was filed in volume 19 of the papers but applicant’s counsel withdrew that volume when the matter was heard.

[30]      In my view, an application in terms of Uniform rule 53 will be defective if it fails to set out the grounds and the facts and circumstances upon which the applicant relies.[38] The founding affidavit set out the grounds and facts in detail.[39] Uniform rule 53(2) requires nothing more of the applicant than to place the facts and grounds before us, and he complied with the rule. It cannot be said that the first respondent was left in the dark as to the facts and grounds upon which the review was brought.[40] I therefore conclude that, the founding affidavit contains sufficient facts and circumstances as required in terms of Uniform rule 53(2).

[31]      Applicant has filed a replying affidavit in response to the first respondent’s answering affidavit.[41] In the reply, he attached various annexures in order to challenge the averments made by the first respondent. Annexure 2 is attached to the record for the following reason, and I quote:

The second respondent had at time presided and even ruled (Annexure 1a and 1b) in a parallel matter as recorded by the state (Annexure 2) being case number 41/433/2008 which has been conveniently omitted by the first respondent.’[42] (My emphasis).

[32]      In the context of the applicant’s reply, an affidavit was attached to show that the magistrate dealt with a similar application, ie the Ithala matter. This averment coupled with the said annexure is placed before this court to disprove the first respondent’s contention that it had provided this court with a complete history of what happened before the lower court. The record is far from perfect but the founding affidavit sets out all the necessary averments, factually and legally, and, nothing more is required for purposes of this review.

Section 342A of the Act

[33]      Pillay J is of the view that this court must undertake its own search through the record to determine whether the application was brought in terms of s 342A of the Act. I disagree. In my view, we have to consider the application that was brought before the learned magistrate, the review record and her judgment to determine whether she had jurisdiction. No other search is required.

[34]      The regional magistrate could only embark on an enquiry in terms of s 342A if the application was brought in terms of the provision, or if the court is of the view that there appears to be an unreasonable delay.[43] When the magistrate clarified the issue with Mr Scheltema as to whether it was an application in terms of s 342A, he informed her that the regional court ‘does not have to strictly follow any rules of the High Court pertaining to motion proceedings or even case law’.[44] This submission simply does not make any sense and an experienced presiding officer would have pinned down counsel to be specific about the procedure followed. Sadly, this was not done by the magistrate.

[35]      This brings me to the part of the transcript that shows undeniably that the applicant is not relying on s 342A of the Act. I quote:

Mr Scheltema: With respect, we’re not dealing with the section 342 application.

Court Sorry…(intervention)

Mr Scheltema We’re dealing with a substantive application where documents are lost.

Court Sorry, what am I missing? Are we not dealing with that?

Mr Scheltema This is not an inquiry in terms of section 342. This is a substantive application. It is not about delays.

.

Mr Scheltema I just take it from the founding papers, the filing notice, this was a notice for application of documents, alternatively the permanent stay of the proceedings.

Court Yes, that’s exactly what I’m talking about now.

Mr Scheltema So it’s got very little to do with the section 342 inquiry, in fact nothing.’[45] (My emphasis).

[36]      It is abundantly clear from the record that the application was not brought in terms of s 342A of the Act. There is therefore no room for any argument that the magistrate could have been mistaken about the nature of the application. The issue of jurisdiction is a very narrow one and it is very specific. A substantive application was brought before the lower court for a permanent stay of the proceedings which was not in terms of s 342A of the Act. The full court in Naidoo supra has ruled on the issue of jurisdiction and I see no reason to deviate from the Naidoo decision.

[37]      Since the applicant challenges the impugned decision of the magistrate on the basis that she did not have the legal capacity to give the judgment she did on 10 April 2017, I consider it necessary to deal with the magistrate’s judgment in full. At first, the court dealt with an application for further postponement of the case and held as follows:

The matter is set down today, the 10th of April 2017 for a ruling in the application for the introduction of documents, alternatively the permanent stay of criminal proceedings in respect of accused 1, Mr G V Naidoo, and accused 2, as they stand before me today.’[46]

[38]      She then repeats the following after she refused any further postponement:

Accused 1 brought an application initially for the production of documents, alternatively, a permanent stay of criminal proceedings. Accused 1 filed an affidavit in support of his application. Initially there were three accused before this court and of course, the fourth was a legal entity.

Accused 2, Mr Pillay, at some stage joined the application and also launched an application for a permanent stay of prosecution. So, before me I have an application by accused 1 and accused 2 for a permanent stay of prosecution, and the reasons (sic) that they seek this application or relief is that it is alleged that there are certain documents that are missing, or rather that these documents are relevant to the preparation of their defence. And I will further elaborate on this at a later stage.’[47]

[39]      The magistrate then lists all of the exhibits filed in support of the application. It is not necessary to repeat all, since it is a matter of record.[48] The court thereafter considers the trial prejudice as averred to by the applicant in his founding affidavit. Hereafter the magistrate analyses several cases that dealt with trial prejudice and concludes:

[A]s far as accused 1 is concerned I’m not satisfied that he has proved that this list of documents are relevant to any defence….therefore his trial prejudice alluded to is not definitive, it is highly speculative at the point and the application for a permanent stay of prosecution in respect of accused 1 is refused.’[49] (My emphasis).

[40]      It is evident from the entire judgment that the magistrate did not exercise any power in terms of s 342A and, accordingly in my view, did not have the jurisdiction to pronounce on the application before her. There is no need for this court to consider any undue delay and/or whether the applicant succeeded in proving that his trial was unduly delayed, as that issue is not before us. If the lower court had the necessary jurisdiction, it would have been necessary to consider the delays and whether it impacted on any of the applicant’s fair trial rights. This court has dealt with the common law right as well as the constitutional right of a speedy trial in S v Zuma & another and a related matter[50] insofar as it relates to a remedy of a permanent stay of prosecution. The issue of undue delay is purely of academic interest and not an issue that will have any practical application absent the court’s jurisdiction.

Costs

[41]      Costs generally follow the result. Under the circumstances, I am of the view that the first respondent should not be mulcted with the costs of the application. The manner in which the applicant approached the review resulted in a voluminous record, which could have been avoided had the review been launched on the issue of jurisdiction from the start. Since Pillay J has proposed a costs order on an attorney and client scale to be paid by the applicant, it is necessary to highlight what was held in the majority judgment in Public Protector v South African Reserve Bank:[51]

[222] The question whether a party should bear the full brunt of a costs order on an attorney and own client scale must be answered with reference to what would be just and equitable in the circumstances of a particular case. A court is bound to secure a just and fair outcome.

[223] More than 100 years ago, Innes CJ stated the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant. Since then this principle has been endorsed and applied in a long line of cases and remains applicable. Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court.

[224] In Eskom, this court emphasised that a costs award falls within a court’s discretion and that there are limited grounds for an appellate tribunal to intervene. The punitive costs order in that matter was held to have been justified as the applicant had abused the High Court’s processes, misled the court, and caused severe prejudice to the respondent. In AB, the Minister of Social Development challenged a punitive costs order which the High Court had granted against her in her official capacity. This court held that the High Court decision was justified in light of the Minister’s flagrant disregard of her duty to ensure that all relevant evidence was timeously placed before the court and the dilatory manner in which she conducted the proceedings in almost every step she was required to take. This court held that “(t)he High Court’s exercise of discretion on costs cannot, in these circumstances, be interfered with”.’ (Footnotes omitted, my emphasis).

[42]      In this review, both parties ought to have curtailed the record that was placed before us. In as much as the applicant received partial success in exercising his right to review the magistrate’s decision, I am not persuaded on the papers that he is entitled to any costs. Given the fact that the first respondent opposed the application on jurisdiction without any legal basis, I am not persuaded that a costs order in favour of the first respondent should be made as proposed by my colleague Pillay J.

[43]      It would be just and equitable in my view that, no order be made in respect of the costs of the review.

Order

[44]     The following order is made:

1.            The decision of the second respondent is hereby reviewed and set aside.

2.            It is ordered that the proceedings commence before another regional magistrate, without any further delay.

3.            There is no order made in respect of costs of the review.

 

 

 



Steyn J

 

 

I agree

 

 



Nkosi J

 

D Pillay J (dissenting judgment)

 

Introduction

 

There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’[52]

 

[45]       The above principle of constitutional law is spotlighted in this application to review and set aside the decision of the second respondent magistrate to dismiss an application for a permanent stay of prosecution.  The applicant contends that she had no jurisdiction to hear his application.  The first respondent, Director of Public Prosecutions, opposes the review while the third respondent, the applicant’s co-accused, does not. 

 

[46]       The background to this application spans over 12 years.  The applicant is accused one in criminal proceedings under case no: 41/4360/2008 (the IDC matter).  He is also an accused in case no: 41/433/2008 (the Ithala matter).  This application arises in the IDC matter.  In both cases, he is charged with fraud and contraventions of s 4(a) and (b) of the Prevention of Organised Crime Act 121 of 1998 (‘POCA’), which deals with money laundering.

 

[47]       The charges arise from the applicant’s role as the managing director and shareholder of Afripath Medical and Research Laboratory (Pty) Ltd between April 2005 and February 2006,  where the applicant represented that credit was required to cover the costs of medical equipment necessary to set up various pathology laboratories across KwaZulu-Natal and/or to cover the costs of expenses incurred in operating such pathology business, whereas in fact the ostensible purchases of equipment and/or business expenses claimed were fictitious, duplicated and/or grossly inflated in value.’ The funds received on the basis of these representations were allegedly used ‘to pay employers’ salaries, lavish directors’ fees and to repay over-inflated shareholders loans.’

 

[48]       Afripath was liquidated. Mr Sivi Pather represented the applicant at the interrogation under s 417 of the Companies Act 61 of 1973.  The Ithala investigation commenced at the beginning of 2006 and concluded with the recommendation that the applicant, the third respondent and another person be charged with fraud.  On 7 April 2008, the applicant made his first appearance on charges in the Ithala matter in the Durban Commercial Crimes Court.  On 17 December 2008, he was arrested and released on bail in the Regional Court in the IDC matter.  On 30 April 2009, the IDC matter was adjourned for statements in the docket to be shared with the applicant.  Trial dates were reserved for 16-27 November 2009.  However, from 21 July 2009 to 30 June 2010, there were about 14 adjournments at the instance of the applicant who had entangled himself in disputes about fees with Mr Vengtas, his erstwhile attorney.

 

[49]       According to the opposing affidavit filed on behalf of the State, the earliest intimation that the applicant intended to apply in terms of s 342A of the Criminal Procedure Act 51 of 1977 (‘CPA’) was on 31 March 2010.  That application was intended to be against the Law Society to relax its rules so that Mr Van der Merwe could take over from Mr Vengtas as the applicant’s attorney.  That application did not materialise.

 

[50]       On 15 October 2010, the matter was adjourned for trial to 4-15 July and 15-26 August 2011.  Shortly before the trial was due to commence, the applicant secured another adjournment to 6 September 2011, pending the outcome of his request for further particulars in the Ithala matter. 

 

[51]       Since his first appearance in December 2008 until his appearance on 22 January 2014 in the Commercial Crimes Court, a period spanning more than five years, the matter had been adjourned 28 times at the instance of the applicant, mainly for reasons associated with his legal representatives or his quest for information allegedly relevant for his defence.

 

[52]       On 22 January 2014, the magistrate adjourned the matter to 31 January 2014 for clarification regarding the joinder of the IDC and Ithala matters.  No joinder was effected.  Instead, on 31 January 2014 the applicant, now represented by Mr Scheltema SC, notified the court that he intended to apply for a permanent stay of prosecution by 13 March 2014.  The matter was adjourned to 16 May 2014 for the hearing of that application.  On that date, neither the applicant nor his legal representatives were in court.  On 4 July 2014, the applicant served the application for the production of documents, alternatively, a permanent stay of the criminal prosecution.

 

[53]       On 29 August 2014, Mr Scheltema informed the magistrate of the applicant’s instruction to cross-examine Mr Rikhotso, the legal representative of the IDC in the      s 417 enquiry, who allegedly received confidential, privileged documents from Mr Pather.  Despite Mr Rikhotso denying that he had such documents, on 14 October 2014, Mr Scheltema moved the application for the production of documents, alternatively the permanent stay of the prosecution.  He informed the court that:

obviously the two applications are intertwined because the first application has a direct bearing on the main application because it's in the main application for the permanent stay of the proceedings where the prosecution sought to file an affidavit by Mr Rikhotso.’[53]  (emphasis added)

 

[54]       Pinning down precisely what the legal basis for the application for the permanent stay of prosecution was, proved to be as much a challenge for the magistrate as it is for me.  She interrupted Mr Scheltema’s lengthy address with the following:

 

Court: Now in terms of the Criminal Procedure Act we're relying on which section of this? Mr Scheltema, can you guide the court in terms of the Criminal Procedure Act.

Mr Scheltema: In terms of the Criminal Procedure Act?

Court: Because this is not a High Court, this is a regional court. …

Court: We’re a creature of statute in terms of the Criminal Procedure Act.’[54]

 

[55]       Instead of addressing the magistrate’s questions, Mr Scheltema referred her to s 38 of the Constitution concerning the enforcement of rights, and Fose v Minister of Safety and Security.[55] Neither reference identified the section of the CPA, nor any other ‘Act of Parliament’ that conferred jurisdiction on the magistrates’ court. 

 

[56]       Again, the magistrate inquired pertinently:

Court: [Section] 342A deals with delays in the matter so investigating delays in the matter …

Mr Scheltema: That's a specific section dealing with delays.  It's indirectly also relevant but for example, permanent stay applications doesn't have to be brought in terms of Section 3 - the section your worship quoted because it's a substantive application dealing with substantive rights.’[56]  (emphasis added)

 

[57]       Finally, the magistrate extracted a categorical disavowal of his application being brought in terms of s 342A:

Court: No, but that’s not what I’m dealing with.  I’m dealing with a s 342 application based on the fact that documents are missing…

Mr Scheltema: With respect, we’re not dealing with the section 342 application.

Court: Sorry…(intervention)

Mr Scheltema: We’re dealing with a substantive application where documents are lost.

Court: Sorry, what am I missing? Are we not dealing with that?

Mr Scheltema: This is not an inquiry in terms of section 342. This is a substantive application. It is not about delays.

.

Mr Scheltema: I just take it from the founding papers, the filing notice, this was a notice for application of documents, alternatively the permanent stay of the proceedings.

Court: Yes, that’s exactly what I’m talking about now.

Mr Scheltema: So it’s got very little to do with the section 342 inquiry, in fact nothing.’[57]

(emphasis added).

 

[58]       On 17 October 2014, in dismissing the application to cross-examine Mr Rikhotso, the magistrate reminded herself of s 35(3)(d) of the Constitution regarding accused persons’ rights to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay.  She found that it was ‘wishful and hopeful on the part of the applicant’ to subject Mr Rikhotso to cross-examination; adjourning the matter would have been a waste of the court’s time and not in the interests of justice. 

 

[59]       Instead, the magistrate decided to call Mr Pather to clarify what he did with the documents relevant to the applicant's preparation of his defence and whether he handed them over during the s 417 enquiry.  Mr Pather commenced testifying on 21 November 2014.  Seven adjournments and a year later he concluded his testimony on 24 February 2016.  His testimony did not produce any documents for the defence.

 

[60]       Mr Scheltema applied for yet another adjournment to consider calling the applicant to testify about documents allegedly in the possession of Messrs Rikhotso and Pather.  The matter was then adjourned for the evidence of the applicant.   However, on 16 March 2016, Mr Scheltema secured another adjournment to enable the defence to procure a transcript of the proceedings and to consider whether the applicant should testify or submit an affidavit. 

 

[61]       On 20 June 2016, evidence from the applicant was expected.  Instead, Mr Scheltema applied for yet another adjournment.  Some ‘important developments’ had allegedly arisen that morning.  He had received from Mr Howse, counsel for the third respondent, titled, ‘Lawyer charged with theft and fraud.’ The lawyer was Mr Rikhotso.  Interrupting Mr Scheltema’s lengthy preamble, the magistrate reminded him of the charges. She enquired whether the documents that the applicant was seeking would ‘prove that he did not use these funds received to pay salaries, employees, directors fees, etc’.  Mr Scheltema avoided the question. The magistrate pressed him: ‘I keep hearing documents, what documents?’  Mr Scheltema responded: ‘It’s almost impossible for me to spell out document for document’.[58]

 

[62]       The magistrate sought clarity on what Mr Scheltema intended to do in relation to Mr Rikhotso.  He was expecting the prosecutor to assist the applicant in providing details of Mr Rikhotso’s arrest.  The prosecutor pointed out that it was self-evident from the article that the case against Mr Rikhotso was unrelated to the IDC matter.

 

[63]       The magistrate directed Mr Scheltema to the high court as, in her view, the magistrates’ court had no jurisdiction to entertain such an application.  Furthermore, the prosecutor was not bound to assist the defence in finding further information.

 

[64]       Mr Scheltema lapsed into vague insinuations that ‘the prosecutor is a duty bearer in terms of the Constitution.  His duty is to ensure absolute fairness … that he is duty bound to assist us.’ Otherwise it may ‘very well’ amount to a ‘gross irregularity’.  He could not genuinely have believed that because, shortly, he accepted that the applicant ‘may have to then investigate it on an urgent basis’.[59] 

 

[65]       By then, it was obvious to the magistrate that the request was:

really sounding like a fishing expedition. You are now seeking further and further information on the witnesses of the State that are not pertinent to your application at all.  I’ve asked you a direct question this is what the charge sheet pertains to.  I keep hearing about documents, documents, documents.  What are these documents that can assist the accused in the preparation of his defence or what are these documents that are no longer in possession of the accused that are prejudicing his preparation for his defence, that is all this court is concerned about because there will be a trial court that will hear the actual trial if the matter is to proceed any further that will deal with any further merits’.[60]

 

[66]       Her patience tested, the magistrate proceeded to rule on his application for the State to assist him and his co-accused to obtain information about the reasons why Mr Rikhotso was charged and disbarred and what happened to his records.  She saw no purpose in the application to adjourn the matter yet again to gather information which she had found to be irrelevant.  She refused to compel the prosecution to assist the defence in clarifying the charges that Mr Rikhotso faced.

 

[67]       After the ruling, the magistrate stood the matter down at Mr Scheltema’s request to take instructions.  On resumption, Mr Scheltema professed that the defence did not want to delay the process.  Nevertheless, he reported that the applicant, who was meant to testify that day, had changed his mind.  Instead, he wanted to file an affidavit after having discovered that Mr Rikhotso had been charged with fraud.  With the prospect of another delay looming, the magistrate pointed out that the option of an affidavit or testifying orally had always been present when the matter was initially set down for two days.  She called for an explanation.

 

[68]       Mr Scheltema proffered the prosecutor’s extra-curial comment that he could not ‘wait to cross-examine’ the applicant.  The magistrate reminded him that the risk of cross-examination always exists when one testifies.  She pointed out that nothing had changed since the matter had been set down for the applicant’s evidence.  Then Mr Scheltema insinuated that ‘very often practitioners are quite tolerant of a presiding officers’ conduct.’[61]  The magistrate granted the adjournment to 19 July 2016 ‘for argument on the merits of the application.’  She directed the parties to exchange answering and replying affidavits by 7 and 15 July 2016.

 

[69]       On 19 July 2016, the hearing began with yet another lengthy discussion on the discovery of documents.  The applicant had still not delivered the affidavit he had promised at the previous hearing.  The content and relevance of such an affidavit was also not disclosed.  In addition to a discussion about scanning copies of documents contained in some 20 lever arch files, the defence alleged that the IDC internal disciplinary hearing held for Lindi Leo Ping had become relevant to its case.  Yet she had featured in the case from the outset.  The IDC had charged her for not disclosing the ‘alleged transgression by the applicant’. 

 

[70]       The prosecutor pointed out that discovery had been made more than seven years earlier. He could not recall what had been discovered then. The magistrate emphasised that this would be the final adjournment irrespective of any difficulties that the defence had in finalising the applicant’s affidavit.  She granted the adjournment because new documents that she had not seen before had emerged.

 

[71]       On resumption on 19 September 2016, the applicant’s attorney withdrew ‘because of a lack of funds.’  The applicant reported that there was ‘some confusion regarding the billing’, that he wished to retain the same attorney and counsel and that he was also expecting to undergo cardiac surgery.  The magistrate warned the applicant that if he failed to secure legal representation by the next court date, he would have to conduct his own defence as there would be no further indulgences.  The magistrate adjourned to 11 November 2016.

 

[72]       After two further adjournments, the applicant secured legal representation in the form of Mr D Naidoo.  On 9 February 2017, Mr Naidoo appeared for the applicant.  Previously, he had adjourned the matter to get the transcript of the proceedings.  Once again, another attorney was unable to proceed with the matter because the applicant had failed to settle his bill with his former attorney, Mr Van der Merwe.  Mr Naidoo did not have the applicant’s file to apprise himself to take over the matter. He also wanted the transcripts. 

 

[73]       On 31 March 2017, the court refused Mr Naidoo’s application for another adjournment.  Mr Naidoo elected not to advance any argument but to remain in attendance taking notes of the proceedings.  The court adjourned to 10 April 2017 to rule on the application. 

 

[74]       On resumption, when the court was about to give its ruling on the application for further information, alternatively the permanent stay of prosecution, Mr Nortjé appeared for the applicant.  He requested a short adjournment to go through the record and prepare himself to argue for the applicant. The applicant’s ‘lack of funds’ was the reason for his previous representatives withdrawing and for the new representatives to ask for time to prepare. Both the prosecutor and Mr Howse objected to another adjournment of the application which had been pending since 2014.

 

[75]       The magistrate ruled on the adjournment.  She recounted the adjournments since July 2016 and ‘the many systematic delays’ before refusing the request for another adjournment.  She was no longer prepared to allow the applicant’s alleged lack of funds to prejudice the proceedings.  The ‘biggest issue’ for her was that she had ‘not been told what the relevance of any of these documents’ were.  No adjournment would have clarified this issue, she concluded.  Justifiably, she refused the application for the adjournment.  Mr Nortjé threatened: ‘[W]e will take your worship's decision to refuse the adjournment on review to the high court.’

 

[76]       Turning to the ruling on the application for the production of documents, alternatively, a permanent stay of criminal proceedings, the magistrate iterated the cause of action before her thus:

Now, as far as the relevant law is concerned, both the accused allege that their constitutional rights in the absence of these documents are infringed, because it amounts to a contravention of section 35 (3) of the Constitution as far as the right to a fair trial has been compromised.’[62]

 

[77]       To his submissions motivating for documents, the magistrate responded:

the court during the course of the application put to Mr Scheltema on numerous occasions that Mr Scheltema, or accused 1, needs to demonstrate to the Court the identity of the documents sought by the accused, the relevance of the documents to his defence and the actual trial prejudice to be suffered in the absence of these documents.  It is significant to point out that when the application first started, in the founding affidavit accused 1 alleges that there was one very crucial file that was necessary to the preparation of his defence.  During the course of the application and in particular during the evidence of Mr Pather, then the list of documents was produced and then it became apparent that accused 1 thereafter persisted with his application that it was this list of documents that he sought and that was relevant to his defence.’ (sic)

 

[78]       Her ruling continued:

He further stated that he had been advised that it may be necessary for him to explain the relevance of the missing documents insofar as his defence is concerned.  However, he was only prepared to do so on the assumption that it is accepted by all parties that the documents referred to in the list have indeed gone missing or are lost. Once this issue has been resolved, he will then file a further affidavit explaining the relevance of the lost documents mentioned in GVN39 in respect of his defence.  Now, this affidavit is dated the 13 of July 2016, some two years after the application began.

Now, it’s trite that the onus is on the applicant to prove his trial prejudice that he will suffer if he does not have these documents, alternatively, to prove that his right to a fair trial has been compromised by the conduct of his previous attorney. However, when an opportunity presented for Mr Naidoo to explain to the court the relevance of the documents on this list, if it’s accepted that this is the list of the documents that went missing from Mr Pather’s office or his possession, Mr Naidoo failed to do so’[63]

 

[79]       Insightfully, the magistrate distinguished the applicant’s case from that of Broome v Director of Public Prosecutions, Western Cape, & others; Wiggins & another v Acting Regional Magistrate, Cape Town, & others, a case concerning documents lost by the State resulting in trial prejudice:[64]

The court must draw a distinction between this and the case of Broome, because in the case of Broome the State had to accept liability as they had seized the documents which were fundamental to the defence of Broome and these documents could not then be produced and allow him to prepare for his defense.  The documents in the case of Broome were clearly identified. 

In this case it's interesting, because it's the choice of the applicant in respect of his various attorneys and the subsequent acrimonious relationships that he shared with his attorneys that have resulted in a loss of these documents.

Therefore, having considered accused 1’s application, the fact that he was given an opportunity to identify precisely what documents he sought he failed to do so. He further failed to draw any link between the list of documents and the relevance of those documents to the preparation of his defence.’ [65]

 

[80]       The magistrate found that he had failed to discharge the onus of proving that the prosecution and the police had the documents and that they were relevant to the defence case.  Consequently, any trial prejudice was ‘not definitive’ but ‘highly speculative’.  Finding that the applicant’s fair trial constitutional rights were not infringed, she refused his application for the permanent stay of prosecution.  That ruling is the subject of this review launched on 17 October 2017.

 

Grounds of review

 

[81]       Initially, the grounds of review were:[66]

(a)          the absence of jurisdiction of the regional court to determine the application for a stay;

(b)          gross irregularity in the proceedings; and

(c)          bias and malice on the part of the magistrate.

 

[82]       At the start of the hearing, the applicant’s counsel, Mr Wolmarans withdrew the last two grounds above, conceding that they were trial related.  Only the challenge to the ruling refusing the application for a stay is pursued on the limited ground of the court’s jurisdiction.  The applicant withdrew his alternative relief, namely, that the court substitute the magistrate’s decision with an order granting a permanent stay of prosecution.

 

Submissions

 

[83]       Mr Wolmarans relied on the ratio in Naidoo v Regional Magistrate, Durban & another (‘Naidoo (KZNHC)’):[67]

. . . s 170 of the Constitution does not confer jurisdiction on the magistrates’ courts to hear applications not authorised by an Act of Parliament.’[68]

He submitted:

It is now settled law in this Division that Magistrates’ Courts do not have jurisdiction to hear applications for a permanent stay of prosecution.’[69]

 

He contended that Naidoo (KZNHC) prohibits the magistrates’ courts from determining fair trial rights and issuing appropriate remedies.  As a full court decision of this division, the doctrine of precedent binds this court to apply Naidoo (KZNHC). 

 

[84]       In response to my questions about the legal basis of the application before the magistrate, he submitted that it was violations of the applicant’s fair trial rights under the common law.  It had nothing to do with delays or s 342A of the CPA.  He resisted any costs order against the applicant.

 

[85]       Ms Shazi, for the respondent, submitted that the application for a permanent stay of prosecution was ‘based on various grounds including the right to a speedy trial and the non-availability of documents allegedly relevant to his trial.’ She refuted the submission that he had relied on the common law; the applicant’s entire claim that his fair trial rights were impaired rested on the Constitution.  Furthermore, the magistrates’ court has jurisdiction to hear and decide applications for a permanent stay of prosecution.  She acknowledged that the decision in Naidoo (KZNHC) had held that the magistrates’ court does not have jurisdiction to hear an application for a permanent stay of prosecution but that was when circumstances fell beyond s 342A of the CPA.  The SCA has ‘repeatedly’ pronounced on applications for a permanent stay of prosecution from the magistrates’ courts without questioning their jurisdiction.  Subsequent to Naidoo (KZNHC), in Sayed & others v S[70] the SCA confirmed a decision in the magistrates’ court dismissing an application for a permanent stay of prosecution without questioning its jurisdiction.

 

[86]       Pertinently, the magistrate had raised the issue of the court’s jurisdiction to hear the application for a permanent stay.  Mr Scheltema persisted with his application.  The basis upon which the applicant brought that application was his ‘right to have [his] trial begin and conclude without unreasonable delay.’  He clearly wanted the magistrate to investigate the unreasonable delay in bringing his matter to trial.  He was opportunistic in relying on Naidoo (KZNHC) to assert that the magistrate did not have jurisdiction to hear his application.  He conveniently left out the fact that he also wanted her to investigate the delay of his trial.

 

[87]       It would have been absurd for the magistrate to deal with a ground of the application but ignore the remedy on the basis that she had no jurisdiction.  It was only after the application for the permanent stay of prosecution had failed that the applicant now claims that the magistrates’ court lacked jurisdiction.  Consequently, the applicant has caused the State ‘enormous prejudice’.  Compounding its difficulties was the appalling condition of the record.  In concluding her submission, Ms Shazi asked for costs on an attorney and client scale. 

 

Issues for determination

 

[88]       Up for determination then are the following questions:

a)    What was the legal basis for the application for the permanent stay of prosecution before the magistrate?

b)    What is the approach to constitutional analysis?

c)    Did the magistrates’ court have jurisdiction under the Constitution?

d)    Did the magistrates’ court have jurisdiction under s 342A of the CPA?

e)    Is there cohesion between the Constitution and s 342A of the CPA?

f)     Is this court bound by Naidoo (KZNHC)?

g)    Does the doctrine of election apply?

h)    Is the magistrate’s decision to refuse the remedy of a permanent stay of prosecution reviewable?

i)     What is the appropriate order for costs?

 

(a) What was the legal basis for the application for the permanent stay of prosecution before the magistrate?

 

[89]       The applicant claimed that in the magistrates’ court, he had asked for a stay of prosecution, not because of the delays but because his fair trial rights were infringed.  In his founding affidavit in this review, he pleaded the jurisdictional challenge as follows:

38. The application was not based on an undue delay in terms of section 342A of the Act. The application was premised on the basis that the lack of adequate facilities for me to prepare for trial and my inability to adduce and challenge evidence.  I would not be able to enjoy a fair trial without the missing documents.

39. It is true that in our law that magistrates’ courts are creatures of statute and unlike high courts, do not have any inherent jurisdiction.

40. Magistrates’ courts do not ordinarily enjoy jurisdiction to judicially review administrative or constitutional action or to make declaratory orders.

 

[90]       In the disclaimer below, he disingenuously attempted to blame the magistrate and absolve his counsel in the magistrates’ court:

It's my new counsel that raised the issue of jurisdiction.  I further placed reliance on the court to have objected then if the application was brought . . . incorrectly in the magistrates’ court.  These are procedural issues not within my expertise but officers of the court.’ (sic)

 

[91]       From the exchanges with the magistrate quoted above, it emerges that Mr Scheltema was aware that, as a creature of statute, the magistrates’ courts’ jurisdiction was circumscribed.  One would expect nothing less from senior counsel.  Additionally, the magistrate reminded him of her constraints several times.  Mr Scheltema’s responses that s 342A, ‘a specific section dealing with delays’ that was ‘indirectly also relevant’ and that ‘permanent stay applications do not have to be brought in terms of s 342A’, had to be a reference to s 35(3)(d) of the Constitution.  Predictably, the magistrate understood the application before her to be about ‘a contravention of section 35(3) of the Constitution as far as the right to a fair trial has been compromised.’[71]  This deduction is supported by the applicant’s affidavit in the application before the magistrate in which he paraphrased s 35(3)(d) in applying for urgent relief in the IDC matter based on an infringement of various constitutional rights, including [his] right to have [his] trial begin and conclude without unreasonable delay.’

 

[92]       That affidavit constitutes volume 19 of the record which the applicant withdrew without my leave.  Even without volume 19, the evidence supports Ms Shazi’s, rather than the applicant’s and Mr Wolmarans’s, account of what the application before the magistrate was.  In this review, disavowing delay as a ground for his application to the magistrate is disingenuous. This is reason enough to disallow, as I do, the withdrawal of volume 19.  Further reasons follow below.

 

[93]       Mr Wolmarans refuted any suggestion that the application for a permanent stay was premised on s 342A of the CPA.  His submission that the applicant relied on the common law is not supported by the pleadings or the record under review.  Nowhere did he articulate what principle of the common law was at issue.  Most common law principles protecting fair trial rights have already been codified in the Constitution under s 35.  If the application was indeed about developing the common law, then what was the development from and to what?  The applicant’s invocation of the common law was founded neither on fact nor law.  It was clearly contrived, a reflexive response to my question from the bench. 

 

[94]       The applicant’s disavowal of s 342A is equally opportunistic.  Recourse to             s 342A, a section aimed at enquiring into and preventing delay, would have resulted in a proverbial own goal for the applicant, the chief architect of the delay. 

 

 

[95]       I find that the application before the magistrate was ‘based on an infringement of various constitutional rights, including [his] right to have [his] trial begin and conclude without unreasonable delay.’  Even though it seems that Mr Scheltema did not identify s 35(3)(d) specifically as the basis for his application, his paraphrasing brings the application squarely under that section of the Constitution.  The application commenced with a request for documents, protracting over more than four years.  Anticipating a favourable outcome, he asked, in the alternative, for the remedy of a permanent stay of prosecution.  By incorporating in his complaint that delays impaired his fair trial rights, he invited the magistrate to investigate the delay to determine the remedy of staying the prosecution.  The magistrate found that his fair trial rights were not impaired by the non-availability or non-disclosure of documents and refused the permanent stay of prosecution.  The issue in this case has been narrowed down to determining whether, on the facts before the magistrate, that court had jurisdiction to refuse to stay the prosecution.

 

[96]       Although the application before her was brought under s 35(3) of the Constitution, the record shows that she was also alive to the provisions of s 342A of the CPA.  Having found that the applicant’s fair trial rights under s 35(3) were not infringed, she followed with her ruling refusing to stay the prosecution, which in the words of Mr Scheltema was the main application.  Why she chose that remedy instead any other in a range of possible remedies is clear.  The applicant invited her.  What is not clear is the legal basis on which she issued her ruling.  The legal basis cannot be assumed.  The applicant who bears the onus of proving her lack of jurisdiction should have asked for this information.  In Director of Public Prosecutions KwaZulu-Natal v Regional Magistrate, Durban & another[72] (‘DPP (KZNHC)’) (per Hugo J, Combrink J concurring) the magistrate’s reasons bore no reference to any statute or empowering rule.[73]  Hugo J found, as I do in this case, that omitting to mention statutes or legal principles does not mean that she did not take them into account.  Nor is such omission a ground in this review.  Certainly, it is not pleaded as such.  The applicant invited her to make a ruling on his application for a stay of prosecution and she did.  The only issue before this court now is whether she had jurisdiction to do so.

 

(b) The approach to constitutional analysis

  

[97]       Throughout this dispute, the tension between provisions of the Constitution and s 342A is manifest.  Starting with the transcript, Mr Scheltema wavered between relying on substantive rights under ss 38 and 35(3)(d) of the Constitution, and delay under s 342A of the CPA being ‘indirectly’ relevant and then not relevant at all.  In the meantime, the magistrate being acutely mindful of her statutory limitations, had in mind s 342A of the CPA, a section dedicated to delay, until Mr Scheltema finally disavowed any reliance on s 342A. 

 

[98]       This tension continued in counsels’ submissions as they debated over what the legal basis was for the application before the magistrate.  Was it brought under the common law, the Constitution or s 342A of the CPA?  Was it about delays?  Because of this controversy, the onus intensified on the applicant to produce a complete record, coherently paginated and indexed.  In the absence of a proper record, clarity was slow in coming.

 

[99]       Even the ratio in Naidoo (KZNHC)[74] shores up the jurisdictional tension in its conclusion that ‘s 170 of the Constitution did not vest the lower court with jurisdiction beyond that bestowed on it by s 342A of the Act.’[75]  Mr Wolmarans’s interpretation of Naidoo (KZNHC) and his submission that this court is bound by it, brings s 342A squarely within the scrutiny of the court through the spectrum of the Constitution.  Consequently, even though the applicant elected not to cite any Act of Parliament as the basis for his application, s 342A now constitutes a part of the legal materials before this court to determine the jurisdiction of magistrates’ courts when deciding an application for a stay of prosecution.

 

[100]    Manifestly, the tension must be resolved.  What is the interface between the Constitution and s 342A?  That we have one system of law was enunciated in Pharmaceutical Manufacturers Association of South Africa & another:

I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution.  There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court.  There is only one system of law.  It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’[76]

 

[101]    The ‘one system of law’ principle was reinforced in Minister of Health & another v New Clicks South Africa (Pty) Ltd & others,[77] in which the Constitutional Court endorsed the Cape High Court’s decision in NAPTOSA & others v Minister of Education, Western Cape, & others.[78]  In NAPTOSA, the High Court had held that allowing litigants to rely on s 23 of the Constitution directly instead of on the LRA ‘would encourage the development of two parallel streams of labour law jurisprudence, one under the LRA and the other under s 23(1)’; such a practice would be ‘singularly inappropriate.’

 

[102]    The judgment in New Clicks continued:

Where, as here, the Constitution requires Parliament to enact legislation to give effect to the constitutional rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be impermissible for a litigant to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies that it provides. Legislation enacted by Parliament to give effect to a constitutional right ought not to be ignored. And where a litigant founds a cause of action on such legislation, it is equally impermissible for a court to bypass the legislation and to decide the matter on the basis of the constitutional provision that is being given effect to by the legislation in question. Thus, in Bato Star this Court held that “[t]o the extent, therefore, that neither the High Court nor the SCA considered the claims made by the applicant in the context of PAJA, they erred.” …

It follows that the SCA, as we held in Bato Star, erred in failing to consider whether PAJA was applicable. The question whether PAJA governs these proceedings cannot be avoided in these proceedings.’[79] (footnotes omitted) (emphasis added)

 

[103]    Thus, the Constitutional Court applied the ‘one system of law’ principle in administrative law and labour law.  Constitutionally recognised rights under ss 33 and 23 generated legislation specifically ‘to give effect to’ them.  Mindful of the caution sounded in S v Makwanyane & another[80] when referring to travaux préparatoires to interpret our Constitution, I mention the Constitutional Assembly Law Advisers’ submission, which was inspired by Qozeleni v Minister of Law and Order & another:[81] The submission urged:

The conclusion in this case was that Magistrates' Courts are also courts of law. Therefore, in terms of this provision they have constitutional jurisdiction over certain issues except for those that they have been expressly prohibited to test.

5.  For the above reasons, it is our opinion that a situation similar to that of Provincial and Local Divisions of the Supreme Court as provided for by Section 101(3)(c) of the Constitution should be applied to Magistrates' Courts and other courts. Uniformity, accessibility and certainty as regards this issue are decisive words in our view. The system must be accessible as possible as it can to bearers of rights it seeks to protect as [soon as] possible as it can. In our opinion this can best be achieved by proper involvement of Magistrates' Courts and other courts in constitutional matters as well. However, the involvement of these courts, in our view, is subject to uniformity and certainty in application of relevant procedures.[82] (sic)

 

[104]    In the Certification of the Constitution of the Republic of South Africa, 1996 case, the objection was to limiting the powers of the magistrates under s 170 of the Constitution by preventing them from ‘enquiring into or ruling on the constitutionality of any legislation, however subordinate, in the course of criminal or civil proceedings otherwise within their jurisdiction,’ and scrutinising the conduct of the President.  No case was made for limiting the jurisdiction of the magistrates’ court but the opposite.  In rejecting this objection and endorsing the hierarchical structure of our court services, the Court reasoned that such decision of the Constitutional Assembly did not

mean that the judiciary lacks the jurisdiction to safeguard and enforce the Constitution and all fundamental rights. It means no more than that litigants who wish to turn to the courts for enforcement of such rights must look to the “higher” and not the “lower” courts.’[83]

Nothing in the reasons indicate that the jurisdiction of magistrates’ courts is limited beyond s 170 of the Constitution.

[105]    Subsequently, the Criminal Procedure Amendment Act, 86 of 1996 (the Amendment Act) amending the CPA, was promulgated on 20 November 1996.  The right to legal representation was one such amendment.[84]  Another was ‘to empower the court to limit unreasonable delays; and to provide for matters connected therewith.’  Manifestly, and having regard to the imminent adoption of the Constitution,[85] the Amendment Act was intended to give effect to constitutional rights,[86] a view I share with Satchwell J.[87]

 

[106]    In Chirwa, the Court applied a subsidiarity rule which precludes the application or development of the common law once legislation has been enacted to give effect to a right.  Van der Walt opines that such ‘right is protected through constitution-conforming interpretation and application of the legislation in accordance with s 39(2).’[88]  Klare cautions against subsidiarity; as home to the principle of separation of powers principle and deference, it could attenuate if not frustrate transformation and the development of the common law, which is not static and immutable.[89]  Subsidiarity read with the ‘one system of law’ principle has been a means of inducing coherence in constitutional jurisprudence.[90]

 

[107]    ‘In 1998, a South African Law Commission report on the constitutional jurisdiction of magistrates' courts proposed that:

magistrates' courts should be given a degree of constitutional jurisdiction appropriate to their level in the judicial structure and noted that “magistrates' courts represent the primary means of access to justice for most South Africans. An exclusion of all constitutional jurisdiction would be inappropriate, more particularly in view of the interactive growth between the common law and our developing constitutional law contemplated by s 8(3) of the Constitution.”’[91] 

Legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA)[92] and the Consumer Protection Act, 68 of 2008 followed, broadening the scope of the magistrates’ courts’ jurisdiction. 

 

[108]    Cumulatively, the literature above provides ‘evidence’ that, as a matter of policy and pragmatism, magistrates’ court have a greater degree of constitutional jurisdiction than was the case under the 1993 Constitution.

 

(c)       Jurisdiction under the Constitution

 

[109]    The Constitution is not ‘national legislation’.[93]  Unlike other Acts of the Republic of South Africa, it was not passed by Parliament, but was adopted by the Constitutional Assembly on 8 May 1996.  After the ‘unprecedented’[94] certification by the Constitutional Court on 6 September 1996, it was amended on 11 October 1996 and adopted on 10 December 1996.  It came into effect on 4 February 1997 to replace the interim Constitution of 1993.  Furthermore, the Citation of Constitutional Laws Act, 5 of 2005 recognises that the Constitution and amendments to it should be treated differently from other Acts of Parliament by not being allocated an Act number like other ordinary Acts of Parliament.[95]  S v Zuma was one of the earliest cases to articulate the primacy of the Constitution.[96] 

 

[110]    The Constitution embodies the ‘minimum core’ content, that is, the essence of all rights.  Without its essence,a right loses its substantive significance as a human right. It is the floor beneath which the conduct of the state must not drop if there is to be compliance with the obligation.  A failure to provide the minimum core obligations of a right therefore results in a breach of the particular right.[97]

 

[111]    Originating in socio-economic rights jurisprudence,[98] the concept thus defined applies to all human rights.  In Zuma, the Constitutional Court recognised that the right to a fair trial is broader than the list of specific rights set out in the paragraphs (a) to (j) of the sub-section [25(3) of the 1993 Constitution]. It embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force.’[99] (emphasis added)

 

[112]   Legislation that whittles down the core content is not constitutionally compliant.  For instance, s 217(1)(b)(ii) of the CPA was held to be inconsistent with the Constitution, insofar as the right not to be compelled to confess was core to the right to a fair trial.  The Constitutional Court held that the prosecution bore the burden of proving beyond a reasonable doubt that the right has not been violated.[100]  On the issue of jurisdiction, the Constitutional Court was critical of Hugo J in the trial court for not exercising jurisdiction, even though the parties had agreed that the high court had jurisdiction.  Holding that a direct referral was ‘wholly incompetent’,[101] the Constitutional Court urged:

Even if a rapid resort to this Court were convenient that would not relieve the judge from making his own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred on judges of the Provincial and Local Divisions of the Supreme Court under section 101(3) is not an optional jurisdiction. The jurisdiction was conferred in order to be exercised.’[102]

 

[113]   The ratio applies even in this instance in which the jurisdiction challenged is that of the magistrates’ court.  Judicial officers conducting trials in which constitutional issues within their competence arise, must determine those issues before granting leave to appeal.  So, when magistrates’ courts invited to exercise jurisdiction, they must do so or give reasons why they cannot.  Zuma discourages trial courts from refusing to accept jurisdiction but to follow Froneman J in Qozeleni[103] (discussed below) by interpreting and applying s 35 of the Constitution to promote its values.[104]

 

[114]   A matrix of constitutional provisions establishes the parameter of the magistrates’ court jurisdiction.  Starting with s 8, it renders the Bill of Rights applicable to ‘all law, and binds the legislature, the executive, the judiciary and all organs of state.’[105] Furthermore, a court ‘​must apply, or if necessary develop, the common law’ to ‘give effect to a right in the Bill.’[106]

 

[115]   Section 34 titled ‘access to courts’ gives everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or another independent and impartial tribunal or forum.

 

[116]   Section 38 concerning the enforcement of rights in the Bill of Rights, gives individuals the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.’  (emphasis added)

 

[117]   Section 39(1) and (2) concerning the interpretation of the Bill of Rights states:

a court, tribunal or forum ​must promote the values that underlie an open and democratic society based on human dignity, equality and freedom . . .  and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’

 

[118]   Section 39(2) imposes on judicial officers theadditional task of having to identify the constitutional issues at stake, as well as understanding that constitutional issues go beyond the formal, traditional interpretation of fair trial rights, particularly as they impact on differently situated people.’[107]

 

[119]   Consequently, judicial officers ‘can no longer rely on the traditional roles as neutral arbiters in an adversarial trial who do not descend into the arena.’[108]  Impartial yes, but never neutral.  This is not meant to undermine the integrity of adversarial proceedings.  Ideally, adjudicators presiding in adversarial proceedings should have ‘the benefit of intelligent and vigorous advocacy on both sides’ to ‘feel fully confident’ of their decisions.[109]  The ‘bond of participation by the litigant is most secure when the arbiter rests his decision wholly on the proofs and argument actually presented to him by the parties.’[110]  That is the ideal.  Practice tells a different story.  ‘Perfect congruence’[111] is unattainable when lawyers’ loyalties are at odds with the rule of law and the integrity of the process, when the desire to win at any cost distorts instead of lends a perspective to the true nature of the controversy, and when practitioners proffer legal materials from outdated texts.  In this case, neither party referred to a single constitutional court precedent; none drew on any constitutional jurisprudence in academic literature.  First principles of practising law in a constitutional democracy is to apply precedents set by the Constitutional Court.   When parity of participation or equality of arms is lacking to the extent that injustice would ensue,[112] then impartial and independent intervention by the adjudicator would be justified, not least to preserve and restore the integrity of the adversarial process.  Disparities in legal and constitutional consciousness would remain mired in traditional ways of practicing law if judicial intervention is not permitted to point lawyers and litigants towards transformative pathways.

 

[120]   Section 170 provides:

All courts other than those referred to in sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.’

 

[121]   Buttressing s 170 is s 110 of the Magistrates' Courts Act, 32 of 1944, which explicitly excludes magistrates from 'pronouncing on the validity of any law. . .' Magistrates' Courts are precluded from exercising direct constitutional jurisdiction.  Notwithstanding, the party which alleges that a law or conduct of the President is invalid, may adduce evidence regarding the invalidity of the law or conduct in question.’[113]

 

[122]   Although a magistrate’s direct application of the Bill of Rights is constrained under s 170, s 39 (1) and (2) of the Constitution obliges a court or tribunal to apply the Bill of Rights indirectly, that is, by interpreting and applying legislation or developing the common law, instead of directly, by crafting constitutional remedies or challenging a law.[114]  Case law and academic opinion (below) appreciate this pull-push tension within the Constitution. 

 

[123]   Froneman J made a compelling case for magistrates’ courts exercising indirect or incidental jurisdiction in Qozeleni.[115] So did Zondo J for the Commission for Conciliation Mediation and Arbitration (CCMA), a statutory tribunal, in Mkhize v Commission for Conciliation, Mediation and Arbitration & another.[116]  Constitutional jurisprudence and pragmatism support magistrates’ courts and even the CCMA having indirect jurisdiction. 

 

[124]   Froneman J emphasised jurisdiction as a means of giving access to justice:

In my view, it seems inconceivable that those provisions of chap 3 of the Constitution which are meant to safeguard the fundamental rights of citizens should not be applied in courts where the majority of people would have their initial and perhaps only contact with the provisions of the Constitution, viz the lower courts. Such an interpretation of the Constitution would frustrate its very purpose of constituting a bridge to a better future. It would negate the principle of accountability or justification in those courts where most of the day to day administration of justice takes place. …

For the Constitution, and particularly chap 3 thereof, however, to fulfil its purpose it needs to become, as far as possible, a living document, and its contents a way of thinking, for all citizens of this country. The establishment of a culture of constitutionality can hardly succeed if the Constitution is not applied daily in our courts, from the highest to the lowest. …

One example will suffice. Section 8(2) prohibits unfair discrimination on the basis of, inter alia, race. Does the Constitution countenance the possible justification of discrimination based on race in pending proceedings before a court of law? I will be surprised to be told that it does.’[117] (emphasis added)

 

[125]   Similarly, Zondo J demonstrated the significance for practice of recognising indirect constitutional jurisdiction of the CCMA in Mkhize.[118]   He reflected on ss 8(1) and (2) and s 34 of the Constitution before concluding:

[I]t is crystal clear that, in the light of s 39(1) and (2), when it performs its arbitral functions under the Act, the CCMA is required to promote the spirit, purport and objects of the Bill of Rights. In interpreting and applying the Bill of Rights, the CCMA is also required to, inter alia, promote the values that underlie an open and democratic society based on human dignity, equality and freedom.

On the basis of the above I am satisfied that the CCMA has not only the power but also is required to interpret and apply provisions of the Bill of Rights when it arbitrates disputes whenever these are relevant or are raised. This does not mean that the CCMA has jurisdiction to pronounce on the constitutional validity of a statute because it obviously does not have that power.’[119]

 

[126]    Practically, the arbitrator’s error was not ‘irrelevant’ but a ‘gross irregularity’[120] because:

In this case the admissibility or otherwise of the telephone evidence was fundamental to the success or failure of the applicant's claim of unfair dismissal. If the commissioner had considered it, he might well have found that the evidence was inadmissible, in which case that would have been the end of the second respondent's case against the applicant. If he allowed it, as he did, that would have been the end of the applicant's case in the proceedings before him which is what happened. The commissioner did not consider the question whether or not such evidence was admissible. He precluded himself from considering the constitutional argument on the basis that he did not have “constitutional jurisdiction”. Insofar as by that he meant that in applying the Act he could not consider constitutional argument on issues in the context of matters falling within the jurisdiction of the CCMA, that was erroneous.’[121]

 

[127]    In the Constitutional Court, recognising the indirect jurisdiction of the magistrates’ courts was progressive.  In Walker v Stadsraad Van Pretoria[122] the high court had held that the claim fell within the jurisdiction of the magistrates’ court, but the defence based on the provisions of the interim Constitution went beyond the magistrate's direct or incidental jurisdiction. The Constitutional Court responded with the following tentative steps in favour of magistrates’ courts having incidental jurisdiction:

It may well be that in the light of the amendment of s 103(1) of the interim Constitution by the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994, the magistrate had incidental jurisdiction to adjudicate upon the defence.’[123]

 

[128]    In Masiya v Director of Public Prosecutions, Pretoria & another (Centre for Applied Legal Studies and Another, AMICI CURIAE)[124] the Constitutional Court put to rest any doubt about the magistrates’ jurisdiction to apply fair trial rights:

The wording of s 110 shows that the magistrates' courts are under an attenuated duty in relation to the development of the common law. They are, however, bound to give effect to the constitutional rights as all other courts are bound to do in terms of s 8(1) of the Constitution. Magistrates presiding over criminal trials must, for instance, ensure that the proceedings are conducted in conformity with the Constitution, particularly the fair ­trial rights of the accused.’ (emphasis added)

 

[129]    Recently, the Constitutional Court approved of Qozeleni in New Nation Movement NPC & others v President of the Republic of South Africa & others.[125] Reinforcing similar sentiments as in Qozeleni, Kriegler J observed in Wild v Hoffert[126] that prosecutors and magistrates could do 'a great deal' to ensure that their trials respected the constitutional requirement of fairness. The constitutional injunction that an accused be given the right to a fair trial is best given effect to by the trial judge.  This is because 'fairness is an issue which has to be decided on the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded.  But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.'[127] (emphasis added)

 

[130]    Qozeleni was decided under the Interim Constitution of 1993.  So was Sanderson.  In Sanderson,[128] thenub of the case made out by the appellant in his founding affidavit [was] that “an unreasonable and inexcusable delay in the prosecution of this matter [had] resulted in a serious infringement of [his] rights to a speedy trial as contained in” section 25(3)(a) of the interim Constitution.’

 

[131]    Although s 35(3)(d) of the Constitution and s 25(3)(a)[129] of the interim Constitution, are ‘not identical, [they] are substantially the same.’[130]  An analysis of the cases will show that for the purposes of the application of the Bill of Rights to assess whether rights have been infringed, the distinction between the interim and final Constitutions is immaterial.  Both Constitutions excluded magistrates’ courts from having jurisdiction to enquire into the validity of any legislation, but the procedures for remedying the invalidity differed.[131]

 

[132]    Sanderson was an appeal to the Constitutional Court originating from a decision of the regional magistrates’ court dismissing an application for the stay of prosecution following a complaint that the accused’s fair trial rights were violated.  If the magistrates’ courts did not have jurisdiction under the interim Constitution, the Constitutional Court would have said so.

 

[133]    This was also the situation in Sayed & others v S,[132]  which was decided after the application for a stay of prosecution was refused in this case.  The magistrates’ court had dismissed a special plea of autrefois acquit and refused a stay of prosecution on the ground that the accused did not suffer irreparable prejudice.[133] 

 

[134]    Schippers AJ, writing for a unanimous court, would have raised the issue of the jurisdiction of the regional magistrates’ court, even when the litigants did not.  Courts may mero moto raise jurisdiction as a point.[134]   As Jafta J reiterated in Runeli v Minister of Home Affairs & others, a ‘judgment given by the Court without jurisdiction amounts to a nullity.'  To allow a matter to go to trial where the court concerned has obviously no jurisdiction to adjudicate thereon would have the effect not only of unnecessarily burdening the rolls of the Court but also of compelling the defendant to incur costs and to make sacrifices of his time and energy which could and should have been avoided. No Court ought to allow this to happen.'[135] 

 

[135]    In an application for a stay of prosecution in S v Naidoo (Naidoo (WCHC)),[136] the court had ‘no quibble with the essential validity’ of the argument that the right of an accused person to a fair trial, as provided in terms of s 35 of the Constitution, was such a fundamental consideration that it should be implied that any magistrate presiding in criminal proceedings must be empowered to exercise an authority to give effect to the right.’[137]

 

[136]    In another appeal to a full bench about an accused’s fair trial rights to legal representation, the Western Cape High Court observed that itwas important for the Magistrate to be alive on the requirements of the Constitution recognising both the practical link between the legal representation on the one hand and a fair trial process on the other hand.’[138]

Following the Amendment Act to the CPA, magistrates routinely begin criminal proceedings by enquiring whether accused persons require legal representation.  These are instances of applying the Constitution read with the legislation at the coalface of justice.

 

[137]    Many academics support magistrates’ courts’ having indirect jurisdiction.[139]  Some, like Jagwanth, even argue for magistrates to have more direct jurisdiction.[140]  Woolman, referring to the Constitutional Court, criticises the ‘persistent refusal to engage in the direct application of the Bill of Rights’.[141]  Drawing on Jagwanth’s work,[142] Currie’s progressive stance in ‘Bill of Rights jurisprudence’ distinguishes between direct and indirect application of the Constitution:

Magistrates’ courts may not enquire into or rule on the validity of any law. This means that a magistrate may not directly apply the Bill of Rights to any law and declare it invalid. However, …  the indirect application of the Bill of Rights to law does not involve a pronouncement on the validity of that law. Rather, it involves the interpretation of legislation and the development of the common law so that both are in accordance with the Bill of Rights. There is nothing, therefore, to prevent a magistrate’s court from indirectly applying the Bill of Rights to a matter before it.  …

The restrictions on the constitutional jurisdiction of magistrates’ courts prevent these courts from deciding on and granting relief in disputes about the constitutional validity of law and conduct of the President. This does not of course mean that these courts are not bound to uphold and give effect to constitutional rights. For example, magistrates presiding over criminal trials must ensure that the proceedings are conducted in conformity with the Constitution, particularly the fair ­trial rights of the accused.’[143] (footnotes omitted)

 

[138]    Loots and Marcus agree that:

Froneman J was indeed correct when, in the Qozeleni case, he held that the interim Constitution did not prevent a magistrate from applying its provisions in the exercise of his ordinary substantive jurisdiction. … This is entirely in line with the dictum of the Constitutional Court in S v Zuma & others, in which Kentridge AJ said that all courts hearing criminal trials were to conduct such trials in accordance with the Constitution.’[144] (footnotes omitted)

 

[139]    Steytler’s work, [145] reprinted in 2016, does not cite Masiya.[146]  He cites Qozeleni[147] thrice but not in relation to magistrates’ courts’ jurisdiction and a stay of prosecution.  In one instance, he disagrees with Qozeleni.[148]  In the extract below, which Steyn J cites with approval, he espouses a view that conflicts with the ‘one system of law’ principle:

Apart from constitutional rights that can be applied directly, criminal justice will continue to be administered in terms of statutory and common law rules of criminal procedure. The constitutional standards set by the Bill of Rights serve, then, only as a safety net and an interpretive norm. While the Bill of Rights sets the foundational norms of criminal procedure, it is no substitute for or replacement of the ordinary rules and principles of criminal procedure.[149]

 

Caught between the push for transformation through the supremacy of the Constitution and the pull for stability through the rule of law – both values having their source in s 1(c)  – Steytler seems to settle for stability, formalism and subsidiarity.  Subsidiarity is a strategy that avoids a constitutional decision if a non-constitutional decision will do.[150] Cases such as Bato Star[151] and South African National Defence Union v Minister of Defence[152] recognise subsidiarity principles in relation to legislation passed ‘to give effect to’ constitutional rights.  However, they also apply subsidiarity concomitantly with the ‘one system of law’ principle.  Steytler fails to reconcile the codification of the common law under the Constitution, the passage of the Amendment Act to the CPA to give effect to the Constitution and the ‘one system of law’ principle.

 

[140]    Without citing any decision of the SCA or the Constitutional Court Steytler concludes that:

In a number of decisions under the interim Constitution it was held that lower courts, as creatures of statute, have only those powers granted to them by statute; the Constitution does not confer additional powers to enforce fundamental rights. Thus, because no power to stay proceedings is granted by either the Magistrates’ Court Act or the CPA, this remedy is beyond their jurisdiction.’[153]  

 

[141]    One of the four decisions he cites is S v Scholtz & others,[154]  in which the full court (per Farlam J) expressly disagreed with the full bench decision in Qozeleni[155] in holding:

that a magistrate's court had no jurisdiction to order a stay of prosecution under s 25(3)(a) on the ground that a reasonable time had elapsed after the accused was charged because such an order would relate to a violation of a fundamental right of the accused entrenched in Chapter 3 of the Constitution and only the Constitutional Court and Provincial and Local Divisions of the Supreme Court had the jurisdiction to deal therewith.’[156]

Both Scholtz and Qozeleni were decided under the interim Constitution.   However, it was Qozeleni that informed the debates during the drafting of the Constitution and, to this day,[157] continues to inform the Constitutional Court’s approach to constitutional interpretation. 

 

[142]    The notion of constitutional interpretation and application being separate from, instead of infused with statutory and common law interpretation, conflicts with the ‘one system of law’ principle; it encourages parallel systems. Dissociating the interpretation and application of the Constitution from the other sources of law, and consequently from the everyday life of the law, would impede transformative constitutionalism,[158]  which requires us to examine and reimagine our legal consciousness and culture, individually and collectively.[159]  It includes changing the way we think about, practise and, importantly, teach law. 

 

[143]    Mr Scheltema launched the application on the basis of s 35(3) of the Constitution, without relying on s 342A of the CPA.  The magistrate probably determined the application on that basis.  If she did, then I find that she had jurisdiction to do so.  This finding is dispositive of the application.  However, this may not be the only basis for her exercising jurisdiction.

 

(d) Jurisdiction under s 342A of the CPA[160]

[144]    Investigating jurisdiction under s 342A is not dependent on whether the applicant relied on it.  He did not.  Nor is it imperative for the purposes of this review for the magistrate to refer to s 342A in her ruling.  She did not.  Jurisdiction arises by operation of law, that is, if the requirements for the application of s 342A exist.  Neither side made any submissions on this point.  As a point of law going to the heart of jurisdiction, it must be addressed.

 

[145]    Prerequisites for a court to exercise jurisdiction under s 342A include the following:

a)   There must be a ‘delay’.

b)   The delay must be ‘in criminal proceedings.’

c)    The delay must be ‘in the completion of proceedings’

d)   The delay must be ‘unreasonable’ and capable of causing ‘substantial prejudice’.

e)   The prejudice must be to ‘the prosecution, the accused or his or her legal adviser, the State or a witness.’

 

[146]    On the facts, the jurisdictional prerequisites existed for the application of s 342A of the CPA.  The cause of delay arose ‘in criminal proceedings’ and ‘in the completion of proceedings’.  Delay albeit at the instance of the applicant prejudiced the State.

 

[147]    Neither party referred to two cases in which the high courts refused to hear applications to stay prosecutions in criminal proceedings pending in the magistrates’ courts.  In Hartley v Presiding Magistrate D Court Krugersdorp Magistrates Court & others[161] Satchwell J was

loath to interfere in the proceedings of another court – notwithstanding that the relevant statute permits same and … very reluctant to make any order at all involving another court without a full investigation and corroborated facts being presented.’[162] 

If an accused brings alleged unreasonable delays to the attention of the presiding magistrate or if the magistrate becomes concerned about delays that could cause any prejudice, then that presiding magistrate would have had regard to the factors set out in section 342A(2) and, after consideration, .... [make] an appropriate intervention.’[163] (footnotes omitted). Satchwell J declined to institute any investigation, which might have been within her powers in terms of subsection 342A(6) of the CPA, if the trial court did not have jurisdiction to try the case.[164]

 

[148]    Similarly, in Madiba v Director: Public Prosecutions Northern Cape[165] the full court affirmed:

[A] court before which criminal proceedings are indeed already pending would in terms of section 342A(1) of the Act be enjoined to investigate a delay in the completion of those proceedings and that would therefore be competent to consider sanctions or remedies like refusing a further postponement or striking the case off the roll.  An accused can therefore not, it seems to me, in a court before which the particular criminal proceedings against him or her are not in any way pending, apply for relief on the basis of the provisions of section 342A of the Act, and such an application would not then magically transform such a court into one before which the criminal proceedings are pending.  In my view it is clear that the criminal proceedings should be pending before the court at the stage when the application is made to that particular court.’ [166]

 

[149]    Thus, if the high court were to take the view, as I do, that s 342A applies, it could refuse to hear the applicant’s stay of prosecution application because it is not the court in which criminal proceedings against him were pending.  I find that by operation of law, the magistrate had jurisdiction under s 342A of the CPA.  This finding too, is dispositive of the application.  But it is not a complete answer to the issue of jurisdiction.

 

(e)       Cohesion between the Constitution and s 342A of the CPA

 

[150]    Enforcing an accused’s fair trial rights under s 35(3) of the Constitution is distinguishable from preventing and eliminating unreasonable delays under s 342A of the CPA.  First, delay is a jurisdictional prerequisite for the application of s 342A but not necessarily for 35(3) of the Constitution. Under the Constitution, delay is usually an element when the complaint involves determining what is ‘within a reasonable time’ under the interim Constitution or ‘without unreasonable delay’ under the Constitution.  In Sanderson,[167] the Constitutional Court interpreted these terms as ‘a component’[168] or ‘an incident of the right to a fair trial.’[169]   However, a fair trial also includes ‘the right to have adequate time and facilities to prepare a defence’.[170]  This was one of the grounds submitted in support of the application to stay the prosecution in this case. 

 

[151]    Second, s 342A is a protection against prejudice afforded specifically to not only an accused but also legal advisers, the State and witnesses.  Section 35 seeks expressly to protect the rights of an accused.

 

[152]    Third, the timing of the delay differs.  A prerequisite for the application of s 342A is that the delay must occur ‘in criminal proceedings’ that are ‘pending’ and ‘in the completion of proceedings.’  Under s 35(3)(d) of the Constitution, a fair trial includes ‘the right to have their trial begin and conclude without unreasonable delay.’ (emphasis added). This was another ground supporting the application to stay the prosecution in this case.  A trial is a part of criminal proceedings which have already commenced.  Thus, s 342A has wider application than s 35.   If ‘pending’ is interpreted to also mean ‘imminent’, this too would widen the scope of s 342A.  Furthermore, it is the timing of the delay that is the jurisdictional requirement.  The cause of delay could arise before proceedings commence but the delay may continue into the proceedings such as in Broome and DPP (KZNHC).  In each case, the facts will determine whether there is delay in or before criminal proceedings.

 

[153]    Naidoo (WCHC)[171] distinguished between the application of s 342A to delays that occurred before and after the commencement of criminal proceedings. 

The provision is, however, limited in effect to unreasonable delay which occurs after the commencement of criminal proceedings, that is intracurially.  It does not apply in respect of delay that has occurred before the commencement of proceedings, that is extracurially.’[172] (emphasis added)

 

[154]    Support for the indirect, incidental application of ‘implied authority’ arising from the common law finds expression in the following extract from Naidoo (WCHC):

In whatever form, however, the courts' duty in that regard would be incidental to the exercise by the magistrates' courts of a jurisdiction with which it is expressly endowed by statute, namely the jurisdiction to try and adjudicate criminal cases. In that sense it amounts to an incidence of the 'implied authority' mentioned in the passage from Bosman, quoted above.’[173] (emphasis added)

 

[155]    However, I depart from the ratio in the following extract in Naidoo (WCHC), which vests jurisdiction under s 35(3)(d) of the Constitution in the high courts to the exclusion of the magistrates’ courts:

In the result, an accused person who seeks a permanent stay of prosecution on the grounds that his or her constitutional right in terms of s 35(3)(d) of the Constitution has been infringed by reason of unreasonable delay before the commencement of criminal proceedings (in other words in circumstances not provided for in s 342A of the CPA) must bring the application before the High Court having jurisdiction.  By contrast, what we have termed “intracurial” delay - delay occurring after the commencement of criminal proceedings - is a matter falling to be dealt with exclusively by the court seized with the criminal proceedings.’[174]  (footnote omitted) (emphasis added)

 

[156]    Causes of delay arising before first appearances in court but which continued to delay criminal proceedings and the completion of proceedings, resulted in prosecutions being stayed in two cases.   DPP (KZNHC)[175] was a review of a decision on the ground that, as a creature of statute, the magistrates’ court had no inherent jurisdiction to quash charges against the accused.[176]  The ‘inordinately long delay’ which prejudiced the accused had occurred ‘between the commission of the offence and the arrest of the accused’.[177]  As mentioned above, the magistrate’s reasons bore no reference to any statute or empowering rule.[178]  Reluctant to define ‘criminal proceedings’, Hugo J, writing for a full bench, settled for saying that ‘events prior to the arrest and first appearance of an accused cannot be regarded as criminal proceedings.’[179]  He found that s 342A(3) did not apply to ‘events preceding the institution of criminal proceedings’.[180]

 

[157]    It seems that DPP (KZNHC) conflated the events causing the delay with the delay itself.  Delay and not the conduct or events causing it, is the jurisdictional prerequisite for the application of s 342A.  If Hugo J had assessed the facts from the perspective of the delay and not the events causing it, he might have found that the magistrate also had jurisdiction under s 342A.  However, the application in DPP (KZNHC) of Coetzee & others v Attorney General of KwaZulu-Natal & others,[181] and through it, s 35(3)(d) of the Constitution, reinforces my views.

 

[158]    Similarly, in Broome,[182] the undisputed facts were that in 1994 the State had confiscated from the applicants a considerable amount of the documentary evidence which the applicants needed to conduct their defence and had lost or destroyed them.  This occurred after the State refused the applicants’ request, when the documents were taken from them, to make copies for their own protection and use.  Additionally, the applicants’ affidavits provided details of the missing documents, explaining fully their significance for criminal proceedings.[183] Their first appearance in court was in September 2004.  The unreasonable delay occurred ‘in the pre-conviction stage of the trial’.[184]   The full bench upheld the accused’s ‘right to a fair trial, which includes the right to have their trial begin and conclude without unreasonable delay and to adduce and challenge evidence.  See section 35(3)(d) and 35(3)(i) of the Constitution.’[185]

 

[159]    In Broome, the application was brought in the magistrates’ court under s 35(3)(d) of the Constitution.  Although the magistrate had anticipated that s 342A ‘may well play a role at a later stage’, s 342A did not feature in that court’s decision.[186]   The extra-curial conduct of the State was the basis for the magistrate exercising jurisdiction exclusively under s 35(3) of the Constitution to prevent prejudice arising from ‘the unacceptable long delay’.[187]  However, if a direct link is established between the extra- and intra-curial delay – as it was in DPP (KZNHC) and Broomeit would bring the delay under s 342A. 

 

[160]    Naidoo (WCHC) is similarly open to widening the jurisdiction of magistrates’ courts to extra-curial occurrences that implicate intra-curial fairness:

The limitation to the reach of s 342A of the CPA does not mean, however, that a magistrate is thereby precluded from giving an effective remedy if it appears, in the context of a criminal trial conducted in the magistrates' court, that an accused person has suffered irremediable trial prejudice as a consequence of an unreasonable delay before the commencement of proceedings. If a fair trial were obviated by the prejudice attendant upon such a delay the magistrate would obviously be enjoined, by reason of the court’s duty to give effect to the implicated fundamental right, to acquit the accused. In most cases this would manifest in the form of giving the accused the benefit of the doubt, or of holding that the prosecution had failed to discharge its heavy burden of proof.’[188]

 

[161]    Naidoo (WCHC) is an example of the magistrates’ court not having jurisdiction under s 342A.  The delay from 2004 to 2010 when summons was issued, occurred before criminal proceedings commenced in court.[189] The application for the stay of prosecution was brought at the first hearing in the regional magistrates’ court and before the accused pleaded to the charges.  Unusually, the extra-curial delay apparently had no causal connection with the intra-curial criminal proceedings; for if it did the court might have applied Broome, which it supported

 

[162]    Differences in the legal framework are reconcilable so that the CPA dovetails with the Constitution.  The magistrates’ courts will have jurisdiction under s 342A of the CPA if all the jurisdictional requirements identified above exist.  If, for instance, the prejudice does not arise from delay, then the magistrates’ courts will still have jurisdiction but under s 35 of the Constitution.  Both provisions have to be read with ss 8, 34, 38, 39, 170 and 171 of the Constitution and s 110 of the Magistrates’ Courts Act. 

 

[163]    However, s 342A is a strategic intervention aimed at imposing a positive duty on all courts.  It states ‘[a] court … shall investigate any delay.’  Subsection 342A(1) does not define ‘court’.  Therefore, any court before which criminal proceedings are pending is empowered and duty bound to prevent or end delay.  ‘[A]ny delay’ places no limits on the nature of the delay.  As bearers of the positive duty, presiding officers would be more readily mindful of delays in criminal proceedings pending before them and to investigate whether they impact on the completion of proceedings, than if the proceedings were not pending before them.  That such a positive duty exists was reinforced in Wild which held:

Subsection 342A1 vests criminal courts with a duty to take the initiative in investigating a ostensibly unreasonable delays in the completion of cases pending before then.[190]

 

[164]    Vesting the positive duty on courts in pending proceedings is by itself a way of avoiding delays that would arise from switching from a lower to a higher court.  For institutional efficiencies, each court must do the work it is meant to do.  Thus, even though high courts have inherent jurisdiction, if their rolls are clogged with cases that should be heard in the magistrates’ courts, systemic delays will result.  Notably, the administration of justice and the distribution of resources will be distorted.  Section 342A deliberately serves the practical purpose of preventing forum shopping, another tactic used to cause delay.

 

[165]    The positive duty means that courts must act, mero moto if necessary, to prevent or stop delays in criminal proceedings.[191]  Sanderson[192] reinforced not only the court’s power, but also its ‘primary responsibility’ to be both constantly on guard to protect the constitutional rights of the accused and to always be ‘mindful of the interests of witnesses, especially complainants, in bringing a case to finality.’[193]  Without s 342A, enforcement of the right to a trial beginning and concluding without unreasonable delay under s 35(3)(d) of the Constitution will remain incidental, haphazard and casuistic.

 

[166]    Courts enjoy wide powers under s 342A to enforce constitutional rights effectively.  When assessing unreasonableness, courts may take into account ‘any other factor which, in the opinion of the court, ought to be taken into account.’[194]  Similarly, to prevent or eliminate delay and prejudice, the court ‘may issue any such order as it deems fit’.[195]  Furthermore, all legal practitioners – judicial officers in particular – are custodians of the Constitution. They take an oath of office to uphold the Constitution. Whenever injustices occur in proceedings before them, the Constitution obliges them to act.[196]  Visser NO & others v Van Niekerk & others[197] articulates this obligation compellingly:

It is the duty of all courts in South Africa to prevent vexatious and disruptive litigation. I have often stated this in past judgments; our courts must jealously protect the virtue of the justice system and litigation must be with the utmost honour and responsibility. It must not be for the mere sake of litigation. Superfluous litigation in one matter obstructs the genuine want for access to and justice in courts for another. The use of courts to settle disputes must be in good faith and is not absolute. Counsel are the guardians of the dignity and integrity of the nation. They need to make sure that they give effect to what the Constitution expects of them and their customers want to be served with integrity. Lawyers are not hired guns but the foot soldiers of the Constitution, whose ultimate role it is to administer justice and they need to do it with the highest standard of integrity.’

 

[167]    Delay deserves more attention.[198] Section 342A(7) requires the National Director of Public Prosecutions to report to the Minister, and ultimately to Parliament, particulars of awaiting trial prisoners in custody for longer than six, twelve and eighteen months in the magistrates’, regional and high courts, whose trials have yet to start.  Parliamentary oversight reinforces the principle that ‘delay cannot serve the wider interest of justice.  Complainants, witnesses, investigating officers, judicial officers, prosecutors and the wider public have an interest in the speedy resolution of criminal cases.’[199]  Courts have to balance the public interest in the speedy administration of justice with the rights of the accused.

 

[168]    Delays to avert a trial must be discouraged and distinguished from necessary delays to ensure a fair trial.[200] A stay of prosecution would be an appropriate remedy if delay prejudices the accused.[201]  Conversely, if an accused has been the primary agent of delay, the Constitutional Court held in Sanderson that:

he should not be able to rely on it in vindicating his rights under section 25(3)(a).  The accused should not be allowed to complain about periods of time for which he has sought a postponement or delayed the prosecution in ways that are less formal.’[202] 

 

[169]    In Zanner v Director of Public Prosecutions, Johannesburg[203] the SCA’s sentiment about delays induced by an accused is apt:

‘ …It is clear that the appellant had no interest at all in having a trial and it hardly lies in his mouth in the circumstances to blame the police for “failing to properly investigate the matter in the first instance” and to argue, as his counsel sought to do, that the respondent is “hiding behind a wrong and/or ill-considered [or negligent] decision to withdraw the charge” - a decision which, on his own version, was based solely on his entreaties.’[204]

 

[170]    Foreseeably, only an accused is likely to apply for a permanent stay of prosecution.  However, whenever an application is made, s 342A serves to protect not only the prosecution and the defence, but also the legal advisers, the State and witnesses.[205]   Not only the accused have legitimate interests in criminal trials commencing and concluding reasonably expeditiously. 

 

[171]    In short, s 35 of the Constitution and s 342A complement and reinforce each other to ensure criminal proceedings are fair.  Where s 342A does not reach, the Constitution fills the gaps.  Such cohesion gives magistrates’ courts jurisdiction to realise the right of access to courts in s 34 of the Constitution.

 

(f)        Stay of prosecution as a remedy

 

[172]    Turning to the jurisdiction to issue constitutional remedies, s 170 entrusts the magistrates’ courts to determine whether an accused’s fair trial rights are being infringed.  If the court can make such a determination, then it must follow that it must also decide the remedy which, under s 172, must be just and equitable.[206] Under s 38 of the Constitution, individuals may secure a declaration of rights if a right in the Bill of Rights has been infringed or threatened. Once a court has jurisdiction, it retains it until the suit is concluded.[207]  Having shown that the magistrates’ courts have jurisdiction to assess whether an accused’s fair trial rights are being infringed, it follows that it must also have jurisdiction to issue appropriate remedies.  If staying the prosecution is a permissible remedy, then refusing to stay would be equally permissible. 

 

[173]    When the jurisdictional prerequisites under s 342A exist, then the court mayissue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice.’ A stay of prosecution would be a competent remedy even though s 342A(3) does not list it specifically.

  

[174]    Naidoo (WCHC) confirmed that ‘magistrates' courts do have the power to entertain and determine applications for a permanent stay of prosecution.’[208]  However, it is a drastic remedy which, if granted, would bar all courts from reinstating the prosecution.[209]  Consequently, it is rarely granted.[210]  DPP (KZNHC) and Broome[211] were such rare cases.    In so far as the applicant and his representatives contrived to create the evidential basis to bring his application within the remit of Broome, the magistrate made short shrift of those machinations.

 

(g)       Is Naidoo (KZNHC) binding?

 

[175]    On the facts, this case is distinguishable from both Naidoo cases.  In Naidoo (KZNHC),[212] the application for the stay of prosecution was brought before the trial commenced.  The grounds for that application were not based on an undue delay in terms of s 342A of the Act,’[213] but ‘irregularities that occurred during the investigation of the matter, not at the trial.’[214] In this material respect Naidoo (KZNHC) is also distinguishable from Naidoo (WCHC), in which there was delay, but it arose before criminal proceedings commenced.

 

[176]    In this case, the application is brought six years after the first appearance in court.  The delays arose in criminal proceedings and in the completion of criminal proceedings.  Causes of the delay evident from the record include adjournments at the instance of the applicant and his pursuit of documents allegedly relevant and taken before criminal proceedings commenced. 

 

[177]    In these proceedings it is suggested that the ratio in Naidoo (KZNHC) should be interpreted as a limitation against the magistrates’ courts from applying the Constitution directly and indirectly to both extra-and intra-curial violations of the constitutional rights in criminal proceedings.  Furthermore, even if the magistrate’s court had jurisdiction to apply constitutional principles to determine the fair trial rights of the applicant, it could not grant or refuse a stay of prosecution

 

[178]    At first blush, Naidoo (KZNHC) appeared to be aligned with Naidoo (WCHC).  It seemed to approve of Naidoo (WCHC) by holding: 

The court thereafter proceeded on an analysis of s 342A of the Act and found, correctly in my view, that the provisions of s 342A do not apply to events preceding the institution of criminal proceedings.[215]  (emphasis added)

 

[179]    However, the holding in Naidoo (WCHC) hinged not on events and irregularities but on delay.  The opinion below adapted from Naidoo (WCHC)[216] does little to clarify the scope of the exclusion of jurisdiction:

In my view an application for a permanent stay of the prosecution, not provided for in s 342A of the Act, must be brought before the High Court that has the necessary jurisdiction to hear it.’[217]

Precisely, what does ‘not provided for in s 342A of the Act’ mean?  Is a stay of prosecution not provided for at all under s 342A or only under certain circumstances? Do the magistrates’ courts have no jurisdiction to grant stays of prosecutions under the Constitution in circumstances not involving delay?  The ratio of Naidoo (KZNHC) is ambiguous. 

 

[180]    I agree with both Naidoo judgments insofar as they mean that s 342A does not apply to delays occurring extra-curially and which are unconnected to the completion of criminal proceedings.  My point of departure from Naidoo (KZNHC) is that I hold that magistrates’ court also derive jurisdiction from the Constitution.  The ‘one system of law’ principle will be violated if s 342A is interpreted to preclude the magistrates’ courts from exercising jurisdiction under the Constitution.  As mentioned above, Naidoo (WCHC) anticipated that magistrates’ court could have jurisdiction if extra-curial delays impacted on intra-curial criminal proceedings.   This obiter I share with Naidoo (WCHC).  Apparently, it is not the view espoused in Naidoo (KZNHC).  Naidoo (KZNHC) did not distinguish itself from Naidoo (WCHC) but approved it without qualification.

 

[181]    The ambiguity persists in the conclusion in Naidoo (KZNHC): 

Accordingly I have reached the conclusion that the learned regional magistrate lacked the necessary jurisdiction to hear the application, since s 170 of the Constitution did not vest the lower court with jurisdiction beyond that bestowed on it by s 342A of the Act.[218]

In the context of a case about extra-curial irregularities it is unclear why the ratio refers to s 342A when that application was not about delays at all but.  Section 342A is dedicated to preventing delays.  The ratio also implies that magistrates’ courts do not derive jurisdiction from the Constitution when s 342A is silent.

 

[182]    Relying on ‘various constitutional and procedural developments over the past years’[219] Naidoo (KZNHC) agreed with Naidoo (WCHC) that DPP (KZNHC)[220]expanded the jurisdiction of magistrates’ courts and relied on s 170 of the Constitution to do so.’[221]  In DPP (KZNHC), Hugo J had applied Coetzee & others v Attorney General of KwaZulu-Natal & others,[222] which was an application to the high court for the stay of prosecution by the accused charged with the murder of human rights activist and lawyer, Griffiths Mxenge.  Without referring to Zuma,[223] delivered two years earlier, Thirion J analysed s 35(3)(d) against the backdrop of the common law and the evidence to find:

[n]o virtue in trying to formulate a rule for determining a point in time from which the delay in commencing a trial has to be reckoned for the purpose of deciding whether the delay has been unreasonable. Delay which occurs before an accused is arrested or served with a summons may be more prejudicial to the accused than the delay which occurs thereafter.’[224]

 

[183]    It was in this context that Hugo J opined:

I believe that this section [s 35(3)(d) of the Constitution] must be read together with s 170 of the Constitution. … Mr Nel, who appeared for the applicant, … suggest[ed] that perhaps the magistrate should have adjourned the matter so that the application could be brought before the High Court. That suggestion of course involves further delays which might exacerbate the problem already faced by the accused. …

[The magistrates’ court] was applying legislation and assuming it to be constitutional as indeed it had to because it was contained in the very Constitution itself. The Constitution of course, is in itself an Act of Parliament and s170 in terms permits the magistrate's court to decide such a matter. It is surely within the province of any magistrate's court even aside from the provisions of the Constitution to ensure that trials heard before it are fair.’[225]

 

[184]    Taken out of this context in both Naidoo judgments, DPP (KZNHC) was interpreted to have expanded the jurisdiction of the magistrates’ courts impermissibly:

Any provision in the Act limiting or excluding the magistrates' courts' jurisdiction to do so would necessarily be incompatible with the Constitution on Hugo J's construction of s 170 because the very object of the provision, on the reading thereof by the KwaZulu-Natal Court, was to vest the magistrates' courts with the power to decide any matter determined by statute. … [D]espite the provisions of s 170 of the Constitution and the enactment of PAJA, magistrates’ courts' do not, in general, have jurisdiction to decide judicial review applications.’[226]

 

[185]    Unsurprisingly, PAJA and many other Acts of Parliament, including the Arbitration Act 42 of 1995 and the Labour Relations Act, 56 of 1995, which exclude the jurisdiction of the magistrates’ courts, were not on the radar of Hugo J’s deliberations in a case concerning delays in criminal proceedings.  Manifestly, Acts of Parliament regulating the jurisdiction of the magistrates’ courts range wider than the Magistrates’ Courts Act and the CPA.  Post 1994 statutes like the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA)[227] and the Consumer Protection Act, 68 of 2008, are enforceable in the magistrates’ courts, at the coalface of giving access to justice to those most likely to seek their protection.

 

[186]    Jurisdictional constraints and permissions arise from within Acts of Parliament read with the ‘minimum core’ of s 170.  Section 342A of the CPA neither expressly nor impliedly excludes the magistrates’ courts from applying s 35.  Certainly, the common law from which the rights and protections in s 35 of the Constitution derive, do not limit the jurisdiction of magistrates’ courts from applying fair trial rights.  On the contrary, trial courts are directed to apply s 35 of the Constitution and develop the common law where the Constitution and the legislation are deficient.[228] 

 

[187]    The authorising instrument is the Constitution; however, the Constitution is not an Act of Parliament but the supreme law.[229]  Acts of Parliament like PAJA and the LRA have internal constraints that expressly exclude their application in the magistrates’ courts.  Nothing in the Magistrates’ Courts Act, except s 110, and in s 342A of the CPA prevent magistrates from applying the Constitution to prevent or stop delay and unfairness in criminal proceedings.  On the contrary, ss 8, 34, 38, 39 (1) and (2), 170 and 171 read together with s 35 of the Constitution and s 342A oblige magistrates to exercise jurisdiction under the Constitution. 

 

[188]    DPP (KZNHC) focused on distinguishing between intra- and extra-curial delays.  Manifestly, by acknowledging that s 342A of the CPA did ‘not apply to events preceding the institution of criminal proceedings, as defined’,  Hugo J was alive to the trite principle that all courts function in terms of national legislation.[230]  Hence, on the facts of that case, Hugo J turned to apply s 35 of the Constitution to the extra-curial delay.  His reference to the Constitution itself being an Act of Parliament, albeit erroneous, shows that the full bench was alive to the constraints and permissions that legislation and the Constitution place on jurisdiction. 

 

[189]    Historically, it was Hugo J's referral that sparked the ire of the Constitutional Court in Zuma about trial courts not interpreting and applying the Constitution and the common law in criminal proceedings.  Without referring to Zuma in DPP (KZNHC), he heeded that directive by applying s 35(3)(d) and Coetzee.

 

[190]    Disconcertingly, the consequences of Naidoo (KZNHC) is that as a full court decision it overruled DPP (KZNHC), a full bench decision in the province, which gave effect to Zuma, [231] a decision of the Constitutional Court.  However, if DPP (KZNHC) went too far in overgenerously according magistrates more power than the Constitution permitted – which, in my view, it did not do – then the interpretation currently sought to be placed on Naidoo (KZNHC) swings too far in the opposite direction. 

 

[191]    If the interpretation of Naidoo (KZNHC) was intended to mean that magistrates’ courts have jurisdiction to determine the fair trial rights of an accused but not to order a stay of prosecution then such a view, which also surfaced in S v Scholtz & others,[232] lost cogency after Masiya[233] and the endorsement for Qozeleni[234] in Zuma[235] and recently in New Nation Movement NPC.[236]  The doctrine of stare decisis binds me to apply the precedents set in these decisions of the Constitutional Court.[237] Similarly, I am bound by the full bench decision in DPP (KZNHC) which gave effect to Zuma.  The rule of law and the values of certainty, predictability, reliability, consistency, fairness and equality inform the obligation of all courts to abide decisions of the highest court.[238]   Consequently, I am unable to abide by the ratio in both Naidoo judgments insofar as they conflict with these precedents, which they did not refer to, distinguish or apply.  

 

[192]    Furthermore, the interpretation contended for in Naidoo (KZNHC) is a radical departure from decisions of the Constitutional Court; it is also antithetical to a transformative constitutional consciousness that values access to justice.  It seeks to neuter the Constitution as the supreme law rendering it subservient to an Act of Parliament. 

 

[193]    The ambiguity now surfacing in Naidoo (KZNHC) casts doubt on whether all three judges of the full court acquiesced in the meaning currently contended for in the ratio.  For these reasons, I cannot follow Naidoo (KZNHC). 

 

[194]    For these reasons too, I do not agree with the majority in this case.  In the absence of any reference to any law in the magistrate’s decision refusing to stay the prosecution, the majority concludes categorically at paragraphs 36 and 40 that it was not in terms of s 342A.   They also see no reason to deviate from Naidoo (KZNHC). 

 

(h)       Doctrine of election

 

[195]    The applicant had chosen to seek the order for the stay of prosecution before the magistrate.  He had the benefit of the advice of senior counsel who knew the constraints of the magistrates’ courts and the inherent jurisdiction of the high courts.  Jurisdiction was pertinently raised with his counsel more than once.  Unequivocally, he chose to launch his application in the magistrates’ court instead of the high court.  He cannot now say that he was unaware of his options.[239] 

 

[196]    The doctrine of election applies:

[W]here a man has two courses open to him and he unequivocally takes one he cannot afterwards turn back and take the other. Where there has been no unequivocal act then whether an election has taken place or not is a question of fact.’[240]

 

[197]    Originating in civil disputes as the principle of peremption, this common law principle also applies in criminal proceedings.[241]  Typically, an accused who elects not to testify, has no right to testify if he changes his mind later.  If he is allowed to testify, it is at the discretion of the presiding judicial officer.[242]  Similarly, in this case, the applicant may not approbate and reprobate with impunity.

 

[198]    Neither party came prepared to address the court on this doctrine.  However, this is no bar to my applying it.  The facts underpinning the applicant’s election, self-evident from the transcript, were unequivocal.  It is an additional reason for not only my dismissing the review, but also for awarding costs against the applicant.

 

(i)        Is the magistrate’s decision reviewable?

 

[199]    In this case, under both the Constitution and s 342A, all the jurisdictional requirements were present when the magistrate dismissed the application for a permanent stay of criminal proceedings.   The application proceeded before a court in which the delays occurred during criminal proceedings which were continuing.  The applicant who was the architect of the delays initiated the application and formally notified the prosecution.  Even though the magistrate’s decision does not refer to s 342A, she had jurisdiction by operation of law.  Her conclusion on a constitutional matter is just and equitable.  Effectively, the ruling meant that the prosecution should proceed to trial.

 

[200]    Given her constitutional and statutory obligation to ensure fairness to both parties in criminal proceedings, the magistrate justifiably terminated a spiral of adjournments causing delay that spanned almost ten years. The application for the permanent stay of prosecution was an appropriate opportunity for her to act to stop the abuse of process and court resources. If the magistrate and her predecessors are to be criticised at all, it must be for the extent to which they indulged the applicant and his legal representatives. Her decision refusing the application for a permanent stay was a speedy, sensible way to put the prosecution back on track for trial.  It is not reviewable.

 

(j)        What is the appropriate order for costs?

 

[201]    Usually, in a review of criminal proceedings, costs orders are not competent. This is especially so when the cause of action is a genuine complaint that the State breached the accused’s constitutional right to a fair trial.  Conversely, groundless and vexatious litigation will be hit with adverse cost orders.[243]

 

[202]    The applicant made out no case against the State for infringing upon his rights.  Singularly, he is responsible for delaying his trial.  This application adds to that delay. Costs must follow the result. The condition of the record adds to his costs.

 

[203]    The record of the proceedings under review must be filed and served timeously in accordance with Uniform rule 53.  In an application for review the applicant bears the onus of calling on the magistrate:

to despatch … to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required … to give or make, and to notify the applicant that he or she has done so.’[244]

 

[204]    After receipt of the record, the applicant must cause copies of necessary portions of the record to be made and to give the registrar two copies and each of the other parties one copy.[245]  Although the registrar is responsible for receiving and making available the record of the proceedings to the applicant, and in practice, the prosecution facilitates this process, the onus rests squarely on the applicant to ensure that a coherent record of the proceedings, properly paginated and indexed is delivered timeously.

 

[205]    In the Certificate of Readiness, the applicant acknowledged the directions from the office of the Judge President that the presiding judge would deal with the condition of the record as she sees fit.  That was a warning to the applicant to fix the flawed record.  He chose not to do so. Such index, as he composed, fails to distinguish the record of proceedings in the magistrates’ court from the pleadings in this application.   He also failed to serve the record and index on the prosecution.

 

[206]    The applicant made vague, unsubstantiated accusations about the record being tampered with.  He accused the prosecution of ‘conveniently’ omitting his application for the permanent stay of prosecution in the Ithala matter.  As proof of such alleged dereliction, he attached that application as an annexure to his replying affidavit.  This was impermissible.  If the Ithala application was material to his case, then he should have attached it to his founding affidavit.  It was not material.  As the record was not the State’s responsibility, the conduct of its officials was irrelevant in an application to review the decision of a magistrate.  Most of all, the Ithala application was not part of the record of the proceedings that resulted in the magistrate’s reasons and decisions in the IDC application under review.  However much both matters overlap, the formulaic nature of review proceedings requires the production of the record in the IDC matter only.  No other record is relevant or permissible.  Applying Johannesburg City Council v The Administrator, Transvaal & another[246] the record in the Ithala matter should have been excluded and volume 19 included in the record of the proceedings in this review. 

 

[207]    Initially, missing from this review application was the application, supported by the applicant’s affidavit, for the permanent stay of prosecution that served before the magistrate in the IDC matter.  Mr Wolmarans drew this deficiency to the attention of the court in his heads of argument.  If that was the position then, it was no longer so when the application was heard.  That application became part of the record as volume 19.  Mr Wolmarans withdrew it with the acquiesce of Ms Shazi at the full bench hearing.  Keen to avoid further delay, Ms Shazi was willing to press on without it.  When the court reconstituted as a full court, I invited counsel to reconsider reinstating volume 19 into the record because it contained the legal basis on which the permanent stay of prosecution served before the magistrate.  Ms Shazi recanted, but Mr Wolmarans refused to reinstate volume 19.  

 

[208]    To enforce rule 53 regarding the production of the record, the Constitutional Court has held in Helen Suzman Foundation v Judicial Service Commission[247] that:

The filing of the full record furthers an applicant’s right of access to court by ensuring both that the court has the relevant information before it and that there is equality of arms between the person challenging a decision and the decision-maker.  Equality of arms requires that parties to the review proceedings must each have a reasonable opportunity of presenting their case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponents. …

 In Turnbull-Jackson this Court held: 

Undeniably, a rule 53 record is an invaluable tool in the review process.  It may help: shed light on what happened and why; give the lie to unfounded ex post facto (after the fact) justification of the decision under review; in the substantiation of as yet not fully substantiated grounds of review; in giving support to the decision maker’s stance; and in the performance of the reviewing court’s function.”’ (emphasis added)

           

[209]    The record must contain ‘all information relevant to the impugned decision or proceedings.  Information is relevant if it throws light on the decision-making process and the factors that were likely at play in the mind of the decision-maker.’[248]  Furthermore,any record of the deliberations by the decision-maker would be relevant and susceptible to inclusion in the record.  . . .  The content of such deliberations can often be the clearest indication of what the decision-maker took into account and what it left out of account.’[249]   

 

[210]    Even though this review proceeds on a single point substantially of law, the applicant bears the onus of proving the facts on the basis of which he contends that the court below did not have jurisdiction.  He has to show precisely what application was before the magistrate.  That application was material for the purposes of checking whether the legal basis then was indeed what the applicant now says it was, and whether the magistrate’s decision refusing to grant a permanent stay of prosecution was just and equitable on the legal materials before her.  From the heads of argument and the oral submissions, disputes emerged about what the legal basis of the application before the magistrate was.   Consequently, that had to be deduced first from the transcript of the proceedings before the decision could be reviewed.  Volume 19 remains relevant not only to refute the applicant’s submissions but also to fortify my findings and conclusions. It is foundational to proving the legal basis of the application before the magistrate.  Relying on the applicant’s affidavits in this review, as the majority does, is not an option.  Much of his ‘evidence’ is disputed, inadmissible and irrelevant.

 

[211]    The election to remove volume 19 is not the prerogative of the applicant.  As dominus litis, he chose judicial review as the process.  Having done so, he must obey its rules.  The rule requiring the production of the record of the proceedings under review is for the benefit of both parties and the court.  As this review is in the context of a criminal prosecution, the complainant and the public also have an interest in justice being done. 

 

[212]    It was common cause that the record was also flawed in other respects.  The quality of the record of the proceedings under review is offensive.  In addition to being incomplete, it is littered with personal hand-written comments and markings.  Some copies are obscured by highlighters.  Most of all, much of the applicant’s affidavits amounts to irrelevant speculation, scandal and hearsay.  Taking instructions is much more than being the mere mouthpiece of a client. 

 

[213]    A record comprising of 19 volumes and 2000 pages is a huge imposition on the limited resources of the court.  The senior judge had to intervene to direct the applicant to remove irrelevant volumes. Volumes 12 to 17 (about 600 pages) were removed. Thereafter, the record still contained irrelevant material.  In his practice note, Mr Wolmarans carelessly informed the court that the entire record of the proceedings, annexures and additional affidavits filed without leave of the court were necessary for the determination of the review.  

 

[214]    Furthermore, the applicant relied on grounds of review that he withdrew only at the hearing.  The grounds of gross irregularity, bias and malice on the part of the judicial officer were both intensely fact sensitive challenges requiring more careful scrutiny of the pleadings and the record than the narrow jurisdictional point of law that he settled for at the hearing.

 

[215]    Another reason that the record had to be perused particularly carefully was that the applicant sought a substitution of the magistrate’s decision.  This meant determining his application to stay the prosecution on its merits.  This request too he withdrew at the hearing.  A substitution on review is permissible only in the clearest cases.  Having struggled with the defective record to determine a substantive remedy, the late withdrawal was again inconsiderate of the pressures on courts.  His conduct is all the more unconscionable after he was warned from the office of the Judge President to attend to the record.

 

[216]    This review was unnecessary.  In Department of Transport v Tasima (Pty) Ltd[250] the majority took the approach that invalid orders are binding until set aside, irrespective that they are invalid.  A contrary view is that a judgment of a court that has no jurisdiction is a nullity; it does not require to be set aside.[251] On the facts of this case whether this review results in setting aside of the magistrates’ decision or not, the trial must proceed.   For as long as the alternative remedy of substituting the magistrates’ decision was on the agenda, this application might have served some practical purpose.  Once the applicant withdrew the alternative remedy, it serves none.

 

[217]    Therefore, for all practical purposes, this review is academic, achieving nothing more than delaying the commencement of his trial.  In this aim, he has succeeded for more than 12 years.  He must be stopped.  The trial must proceed forthwith. To discourage further delay, Naidoo (WCHC)[252] issued an advisory on the merits of an application for a permanent stay.[253]  In that case, to evade paying taxes, the accused corporation had made false claimsin 37 instances over a 26 month period spanning December 2000 to February 2003’.[254] The court was unpersuaded that the amount of the taxes claimed (R40 000) rendered the offences ‘trifling’ to justify a permanent stay of prosecution.  Although the seriousness of the charges is a concern that goes to the merits of an application for a permanent stay, a similar advisory is justified in this case.  Corruption and money laundering, like tax evasion[255] and murder,[256] are serious crimes confronting the applicant.  Society has an interest in the outcome of his trial.

 

[218]    The applicant’s initiation and conduct of this application for review was ill-conceived.  It caused great inconvenience and inefficiencies for both the prosecution and the court.  This judgment is lengthened as a result.  Whether the applicant or his numerous representatives were responsible for this debacle is for them to apportion amongst themselves.  For now, the applicant must be held to account with a punitive order for costs.

 

Order

 

[219]    The order I grant is the following:

 

a)    The proceedings under review are in accordance with justice.

 

b)    The application for review is dismissed, with costs to be paid by the applicant on an attorney and client scale.



D Pillay J

 

 



 

 

 

 

 

 

 

 

APPEARANCES

Counsel for the appellant               :           JWB Wolmarans

Instructed by                                  :           Donavan Naidoo & Associates

                                                                    135 Stella Road

                                                                    Hillary, 4094

                                                                   REF: DN/0018

                                                                   Email: donovan@dnalegal.co.za 

                                                                                                                                               

Counsel for the respondent           :           K Shazi         

Instructed by                                  :           Director of Public Prosecution Durban

                                                                   88 Joe Slovo Street

                                                                   5th Floor, Southern Life Building

                                                                   Durban, 4000

                                                                   Ref: Mr Ratanjee

                                                                   Email: kbhagwan@justice.gov.za

 

Date of Hearing                              :           20 March 2020 and 03 June 2020

Date of Judgment                            :           13 August 2020

 

 

 




[1] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 15.

[2] See papers at 2 paras 1-4.

[3] See McIntyre en andere v Pietersen NO en ’n ander 1998 (1) BCLR 18 (T) at 20F-G; Moodley & others v National Director of Public Prosecutions & others 2008 (1) SACR 560 (N) and Sayed & another v Levitt NO & another 2012 (2) SACR 294 (KZP) para 2.

[4] See s 173 of the Constitution of the Republic of South Africa, 1996.

[5] Naidoo v Regional Magistrate, Durban & another 2017 (2) SACR 244 (KZP).

[6] S v Sayed & others 2018 (1) SACR 185 (SCA).

[7] 11 Lawsa 2 ed para 526.

[8] N Steytler Constitutional Criminal Procedure (1998) at 3.

[9] Op cit at 288.

[10] See Steytler op cit at 27. See also J de Waal, I Currie and G Erasmus in The Bill of Rights Handbook 4 ed (2001) at 105 et seq.

[11] Connolly v Ferguson 1909 TS 195.

[12] Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA).

[13] Fischer & another v Ramahlele & others 2014 (4) SA 614 (SCA) and Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC).

[14] Para 13. The Constitutional Court confirmed their approach in Public Protector v South African Reserve Bank supra para 234. More recently the full court of this division in eThekwini Municipality & others v Westwood Insurance Brokers Proprietary Ltd (AR230/2018) [2020] ZAKZPHC 2 (31 January 2020) relied on the abovementioned dicta and cautioned that judges should not raise issues, not raised on the papers before it. See paras 27-33.

[15] Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims & others 2015 (3) BCLR 268 (CC).

[16] Ibid paras 96-104.

[17] National Commissioner of Police & another v Gun Owners of South Africa (561/2019) [2020] ZASCA 88 (23 July 2020).

[18] Ibid para 29 where the SCA cited with approval from R v Hamilton (footnotes omitted).

[19] A litigant stands or falls by the factual and legal basis made out in its founding affidavit. See President of the Republic of South Africa & others v South African Rugby Football Union & others 2000 (1) SA 1 (CC) para 150 and Van der Merwe & another v Taylor NO & others 2008 (1) SA 1 (CC) para 122.

[20] S v Baleka & others 1986 (1) SA 361 (T).

[21] Ibid at 397J-398A.

[22] Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC).

[23] Op cit para 13.

[24] Op cit para 26.

[25] Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA).

[26] Ibid para 32.

[27] Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 576 (SCA).

[28] Also see Madubane v Minister of Minerals Resources & another [2019] JOL 43214 (GP) para 19.

[29] See Volume 1 at 8.

[30] See Volume 1 at 48 para 15.

[31] The Constitutional Court in Wild & another v Hoffert NO & others [1998] ZACC 5; 1998 (3) SA 695 (CC) para 32 referred to the practical application of s 342A as follows:

Commendably, the Legislature has taken a major step in remedying the scourge of delays in criminal cases by furnishing criminal courts with practical tools that can be used in furthering the speedy trial objectives of s 25(3)(a). A new s 342A has been introduced into the Criminal Procedure Act 51 of 1977 by s 13 of Criminal Procedure Amendment Act 86 of 1996. Although this is neither the time nor the place to comment in detail on the section, the novel provisions of which will have to be interpreted and applied by courts other than this one, it can and should be observed that proper application of such provisions could materially contribute to protection of an accused person’s rights under s 25(3)(a). Subsection 342A(1) vests criminal courts with a duty to take the initiative in investigating ostensibly unreasonable delays in the completion of cases pending before them; ss (2) lists a number of factors to be considered in such investigation; the following subsection provides a number of remedies, including the unprecedented power to make a costs order in a criminal case. The interpretation of the new section and its practical application in the administration of the criminal justice system will be worked out by the courts over time. In doing so they will have to be mindful of the constitutional context created by s 25(3)(a) of the interim Constitution (and its successor in the final Constitution, s 35(3)(d)).’

[32] See s 171, which provides:

All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.’ (My emphasis).

Also see South African Broadcasting Corp Ltd v National Director of Public Prosecutions & others [2006] ZACC 15; 2007 (1) SA 523 (CC) para 88.

[33] Cf. S v Mamase & others 2010 (1) SACR 121 (SCA) para 16.

[34] See paras 195-198 of the minority judgment.

[35] Eynon v Du Toit 1927 CPD 76; E v E & another 1940 TPD 333 and Marth NO v Collier & another [1996] 3 All SA 506 (C).

[36] See Volume 1 at 18 paras 36-37.

[37] See Volume 1 at 18.

[38] See Terblanche v Wiese en andere 1973 (4) SA 497 (A).

[39] See Minister of Justice v Bagattini & others 1975 (4) SA 252 (T) at 258G-H.

[40] See Terblanche supra at 504C-D.

[41] See Volume 1 at 64 et seq.

[42] See Volume 1 at 64.

[43] See s 342A(1) of the Act.

[44] See Volume 8 at 754 lines 9-10.

[45] See Volume 11 at 1068 lines 6-22.

[46] See Volume 11 at 1189 lines 1-5.

[47] See Volume 11 at 1192 lines 11-24.

[48] See Volume 11 at 1194 lines 4-25 and 1195 lines 4-11.

[49] See Volume 11 at 1211 lines 1-10.

[50] S v Zuma & another and a related matter 2020 (2) BCLR 153 (KZD).

[51] See fn 13.

[52] Pharmaceutical Manufacturers Association of South Africa & another: In re Ex Parte President of the Republic of South Africa & others (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 44.

[53] Transcript v8 at 701 l21-25.

[54] Transcript v8 at 753 l14-19 and l22.

[55] Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); Transcript v8 at 754 l23-24.

[56] Transcript v8 at 756 l1-7.

[57] Transcript v11 at 1068 l4-22.

[58] Transcript v11 at 1058 l5-7.

[59] Transcript v11 at 1060 l18-24.

[60] Transcript v11 at 1061 l14-24.

[61] Transcript v11 at 1075 l7-8.

[62] Transcript v11 at 1204 l12.

[63] Transcript v11 p1206-1207 l14-21, l1-4.

[64] Broome v Director of Public Prosecutions, Western Cape, & others; Wiggins & another v Acting Regional Magistrate, Cape Town, & others  2008 (1) SACR 178 (C). 

[65] Transcript v11 at 1210 l11-25.

[66] Section 22 of the Superior Courts Act, 10 of 2013 read with rule 53 of the Uniform Rules of Court.

[67] Naidoo v Regional Magistrate, Durban & another 2017 (2) SACR 244 (KZP); [2017] ZAKZPHC 19.

[68] Naidoo (KZNHC) para 20.

[69] Applicant’s Heads of Argument.

[70] Sayed & others v S (530/2017) [2017] ZASCA 156; 2018 (1) SACR 185 (SCA) (24 November 2017).

 

[71] Transcript v11 at 1204 l12.

[72] Director of Public Prosecutions KwaZulu-Natal v Regional Magistrate, Durban & another  2001 (2) SACR 463 (N) at 465h-466d.  

[73] DPP (KZNHC) at 4.

[74] Naidoo v Regional Magistrate, Durban & another 2017 (2) SACR 244 (KZP); ([2017] ZAKZPHC 19.

[75] Naidoo (KZNHC) para 25.

[76] Pharmaceutical Manufacturers Association of South Africa & another: In re Ex Parte President of the Republic of South Africa & others (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 44; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) para 22.

[77] Minister of Health & another v New Clicks South Africa (Pty) Ltd & others (CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) paras 118, 432-438.

[78] NAPTOSA & others v Minister of Education, Western Cape, & others 2001 (2) SA 112 (ZAWCHC).

[79] New Clicks paras 437-438.

[80] S v Makwanyane & another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 16.

[81] Qozeleni v Minister of Law and Order & another 1994 (1) BCLR 75 (E); 1994 (3) SA 625 (E).

[82]CA Law Advisors ‘Opinion On The Extent To Which Constitutional Jurisdiction Should Be Conferred To Magistrates And Other Courts’  CA 10/95 https://www.justice.gov.za/legislation/constitution/history/LEGAL/LCA10.PDF (accessed 24 June 2020).

[83] Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) (‘Certification) para 137-138.

[84] Section 2 of the Criminal Procedure Amendment Act, 86 of 1996 amended s 73 of the CPA by the insertion of ss 2A and 2B to provide for legal representation from the time of arrest to trial, if necessary, at State expense.

[85] See below for the details of the adoption.

[86] Hartley v Presiding Magistrate D Court Krugersdorp Magistrates Court & others (02538/2015) [2015] ZAGPJHC 75 (21 April 2015) para 6:

If indeed, there has been undue or unnecessary or unreasonable delay in conducting this criminal trial and this has been prejudicial to Hartley there is a remedy for which provision is made in the section 342A of the Criminal Procedure Act. This section was introduced in 1996 in order to ensure that the Constitutional promise of conclusion of a criminal “without unreasonable delay” is effected.’ (footnote omitted)

[87] Hartley para 6.

[88] AJ van der Walt ‘Normative pluralism and anarchy: Reflections on the 2007 term’ (2008) 1 Constitutional Court Review 77 at 99-100 and 103.

[89] Karl Klare ‘Legal Subsidiarity & Constitutional Rights: A Reply to AJ Van Der Walt’ (2008) 1 Constitutional Court Review 129.

[90] AJ van der Walt above.

[91] Saras Jagwanth ‘The constitutional roles and responsibilities of lower courts’ (2002) 18 SAJHR 201 at 222.

[92] Section 16 of PEPUDA.

[93] Alan Dodson ‘Civil and constitutional procedure and jurisdiction’ 2005 Annual Survey 707. See contra S v Naidoo 2012 (2) SACR 126 (WCC) para 5; Naidoo v Regional Magistrate, Durban 2017 (2) SACR 244 (KZP); ([2017] ZAKZPHC 19 para 20.

[94] Certification para 1.

[95] The Citation of Constitutional Laws Act, 5 of 2005 provides:

1(1) From the date of commencement of this Act, no Act number is to be associated with the “Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)”.

(2) Any reference to the “Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996)”, contained in any law in force immediately prior to the commencement of this Act, must be construed as a reference to the “Constitution of the Republic of South Africa, 1996”.’

[96] S v Zuma (CCT5/94) [1995] ZACC 11995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (SA); Klaasen A ‘Constitutional interpretation in the so-called “hard cases”: Revisiting S v Makwanyane[2017] 1 DEJURE 2.

[97] Lorette Arendse ‘The Obligation to Provide Free Basic Education in South Africa: An International Law Perspective’ [2011] 14 PER 34.

[98] David Bilchitz ‘Towards a Reasonable Approach to the Minimum Core: Laying the Foundations for Future Socio-Economic Rights Jurisprudence’ (2003) 19 SAJHR 1.

[99] Zuma para 16.

[100] Zuma para 39.

[101] Zuma para 10.

[102] Zuma above.

[103] Qozeleni v Minister of Law and Order & another 1994 (1) BCLR 75 (E); 1994 (3) SA 625 (E) para 17.

[104] Zuma para 17.

[105] Section 8(1) of the Constitution.

[106] Section 8(3) of the Constitution.

[107] Saras Jagwanth ‘The constitutional roles and responsibilities of lower courts’ 2002 18 SAJHR 201 at 211-212.

[108] Jagwanth at 211, citing Canadian Judge Donna Hackett.

[109]  Lon L. Fuller and Kenneth I. Winston ‘The forms and limits of adjudication’ (1978) 98 Harvard Law Review 373 at 384.

[110] Fuller et al at 388.

[111] Fuller et al above.

[112] Martha C. Nussbaum ‘Capabilities and Human Rights’ Fordham Law Review (1997) Vol 66 at 273-274; Amartya Sen An Idea of a theory of justice (2009).

[113] Section 110 of the Magistrates' Courts Act, 32 of 1944: Pronouncements on validity of law or conduct of President

(1) A court shall not be competent to pronounce on the validity of any law or conduct of the President.

(2) If in any proceedings before a court it is alleged that-

(a) any law or any conduct of the President is invalid on the grounds of its inconsistency with a provision of the Constitution; or

(b) any law is invalid on any ground other than its constitutionality,

the court shall decide the matter on the assumption that such law or conduct is valid: Provided that the party which alleges that a law or conduct of the President is invalid, may adduce evidence regarding the invalidity of the law or conduct in question.

[114]AJ van der Walt ‘Normative pluralism and anarchy: Reflections on the 2007 term’ (2008) 1 Constitutional Court Review 77 at 99-100; For a further explanation of the differences between direct and indirect application of the Constitution, see Currie below.

[115] Qozeleni v Minister of Law and Order & another 1994 (2) SACR 340 (E).  An application for the review of a decision of a magistrate in a civil action for damages for unlawful arrest, detention and assault by members of the police force.

[116] Mkhize v Commission for Conciliation, Mediation and Arbitration & another 2001 (1) SA 338 (LC). The employer used surreptitiously recorded telephone conversations of its employee to dismiss him for theft. 

[117] The consequence of the incorrect interpretation of s 241(8) the interim Constitution in Qozeleni was that it deprived the applicant of the opportunity to see the contents of the police docket in a civil claim for damages.

[118] The Constitution gets a boost from s 1 and s 3(b) of the Labour Relations Act, 56 of 1995 (LRA).

[119] Mkhize paras 18-19.

[120] Mkhize para 23.

[121] Mkhize para 22.

[122] Walker v Stadsraad Van Pretoria 1997 (4) SA 189 (T).

[123] Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC) para 16.

[124] Masiya v Director of Public Prosecutions, Pretoria & another (Centre for Applied Legal Studies & another, AMICI CURIAE) 2007 (5) SA 30 (CC) para 68.

[125] New Nation Movement NPC and others v President of the Republic of South Africa & others (CCT110/19) [2020] ZACC 11 para 167.

[126] Wild & another v Hoffert NO & others (CCT28/97) [1998] ZACC 5; 1998 (3) SA 695; 1998 (6) BCLR 656 (12 May 1998).

[127] Key v Attorney-General, Cape Provincial Division, & another (CCT 21/94) [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (15 May 1996) para 13.

[128] Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) para 8.

[129] Section 25(3): Every accused person shall have the right to a fair trial, which shall include the right- …

(a) to a public trial before an ordinary court of law within a reasonable time after having been charged;

[130] Sanderson para 17.

[131] Section 170 of the Constitution; s 103 of the interim Constitution, 1993.

[132] Sayed & others v S (530/2017) [2017] ZASCA 156; 2018 (1) SACR 185 (SCA) (24 November 2017).

[133] Sayed para 4.

[134] Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O); Runeli v Minister of Home Affairs & others 2000 (2) SA 314 (TkH); Ex parte Pan-African Tanneries Ltd (Under Judicial Management) 1950 (4) SA 321 (O).

[135] Runeli at 317. See also Ex parte Pan-African Tanneries Ltd at 322--3.

[136]  S v Naidoo 2012 (2) SACR 126 (WCC).

[137] Naidoo (WCHC) para 14.

[138] S v Moyce 2013 (1) SACR 131 (WCC) para 17.

[139]Saras Jagwanth ‘The Constitutional Roles and Responsibilities of Lower Court’ (2002) 18 SAJHR 201 at 214: ‘The discussion so far illustrates the enormous responsibilities placed on magistrates to give effect to and uphold the provisions of the Constitution in the course of their everyday work. Indeed, magistrates have to do some of the most difficult things that the Constitution requires. While the superior courts often deal with more abstract and academic questions of constitutional law and engage in more deliberative decision­ making, it is in the trial courts that the actual application of constitutional rights is predominantly carried out. As we have seen, in many instances trial courts have the difficult and unenviable task of balancing competing rights and interests.’

[140] Jagwanth at 214:

[141] S Woolman ‘The amazing, vanishing bill of rights’ (2007) 124 South African Law Journal 762-794 762 cited in AJ van der Walt ‘Normative pluralism and anarchy: Reflections on the 2007 term’ (2008) 1 Constitutional Court Review 77 at 97.

[142] See also: Iain Currie ‘Bill of Rights jurisprudence’ 2001 Annual Survey 37 at 4 cites S Jagwanth ‘Constitutional Application’ 2001 SACJ 122.

[143]Currie and De Waal Jurisdiction in constitutional litigation 6th ed (2013) ch 5 at 113-114. (Bill of Rights Handbook, The/Chapter Five Jurisdiction in Bill of Rights Litigation/5.3 Jurisdiction in constitutional litigation).

[144] Cheryl Loots and Gilbert Marcus ‘Jurisdiction, Powers and Procedures of the Court’ Revision Service 5, 1999.

[145] Nico Steytler Constitutional Criminal Procedure -A commentary on the Constitution of the Republic of South Africa, 1996 (1998).

[146] Masiya v Director of Public Prosecutions, Pretoria & another (Centre for Applied Legal Studies & another, AMICI CURIAE) 2007 (5) SA 30 (CC).

[147] Qozeleni v Minister of Law and Order & another 1994 (1) BCLR 75 (E).

[148] Steytler at 236 fn 47. He disagrees that the right to equality in the concept of equality of arms applies in relation to the state, which is not a person.

[149] Steytler at 3.

[150] AJ van der Walt ‘Normative pluralism and anarchy: Reflections on the 2007 term’ (2008) 1 Constitutional Court Review 77 at 99-100.

[151] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism & others 2004 (4) SA 490 (CC).

[152] South African National Defence Union v Minister of Defence 2007 5 SA 400 (CC) paras 51-52; AJ van der Walt (above) at 105.

[153] Steytler at 288 fn 186.

[154] S v Scholtz & others 1996 (2) SACR 623 (C).

[155] Scholtz at 624-625.

[156] Scholtz at 624.

[157] New Nation Movement NPC & others v President of the Republic of South Africa & others (CCT110/19) [2020] ZACC 11 para 167.

[158] For a discussion of the Constitution as a ‘living document’ and the notion of ‘tabulated legalism’ see Henry Selzer ‘Judicial Activism as Exponent of the Unwritten Values Inherent in the South African Bill of Rights’ at 28 Master of Laws Dissertation supervisor: Mr C J Botha UNISA.

[159] Pius Langa ‘Transformative Constitutionalism’ (2006) 17(3) Stell L R 351;  Dennis M Davis and Karl Klare ‘Transformative constitutionalism and the common and customary law’ (2010) 26 SAJHR 403 at 403; Karl Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146; Duncan Kennedy 'Legal Formalism' in N Smelser & P Baltes (eds-in-chief) 13 Encyclopaedia of the Social & Behavioral Sciences 8634, 8635 (2001); Duncan Kennedy A Critique of Adjudication – Fin De Siècle (1997) at 105-7.

[160] Section 342A of the CPA provides in part:

Unreasonable delays in trials

(1) A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness.

(2) In considering the question whether any delay is unreasonable, the court shall consider the following factors:

(a) The duration of the delay;

(b) the reasons advanced for the delay;

(c) whether any person can be blamed for the delay;

(d) the effect of the delay on the personal circumstances of the accused and witnesses;

(e) the seriousness, extent or complexity of the charge or charges;

(f) actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;

(g) the effect of the delay on the administration of justice;

(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;

(i) any other factor which in the opinion of the court ought to be taken into account.

(3) If the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order-

(a) refusing further postponement of the proceedings;

(b) granting a postponement subject to any such conditions as the court may determine;

(c) where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without the written instruction of the attorney-general; 

(d) where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed;

(f) that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.’ (my emphasis)

[161] Hartley v Presiding Magistrate D Court Krugersdorp Magistrates Court & others (02538/2015) [2015] ZAGPJHC 75 (21 April 2015).

[162] Hartley para 5.  

[163] Hartley para 7.  

[164] Section 342A(6): ‘If, on notice of motion, it appears to a superior court that the institution or continuance of criminal proceedings is being delayed unreasonably in a lower court which is seized with a case but does not have jurisdiction to try the case, that superior court may, with regard to such proceedings, institute the investigation contemplated in subsections (1) and (2) and issue any order contemplated in subsection (3) to the extent that it is applicable.’

[165] Madiba v Director: Public Prosecutions Northern Cape (CA&R155/2015) [2016] ZANCHC 30 (3 June 2016).

[166] Madiba para 14.

[167] Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC).

[168] Sanderson para 20.

[169] Sanderson para 21.

[170] Section 35(3)(b) of the Constitution.

[171] S v Naidoo 2012 (2) SACR 126 (WCC).

[172] Naidoo (WCHC) para 14.

[173] Naidoo (WCHC) para 14.

[174] Naidoo (WCHC) para 18.

[175] Director of Public Prosecutions KwaZulu-Natal v Regional Magistrate, Durban & another  2001 (2) SACR 463 (N) at 465h-466d.  

[176] DPP (KZNHC) at 465.

[177] DPP (KZNHC) at 464.

[178] DPP (KZNHC) at 465.

[179] DPP (KZNHC) at 466.

[180] DPP (KZNHC) above.

[181] Coetzee & others v Attorney General of KwaZulu-Natal & others 1997 (3) All SA 241 (D).

[182] Broome v Director of Public Prosecutions, Western Cape, & others; Wiggins & another v Acting Regional Magistrate, Cape Town, & others 2008 (1) SACR 178 (C)  paras 75-83.

[183] Broome paras 44-48, 76; Naidoo (WCHC) para 30.

[184] Broome para 54.

[185] Broome para 76.

[186] Broome para 32.

[187] Broome para 3.

[188] Naidoo (WCHC) para 14.

[189] Naidoo (WCHC) para 1.

[190] Wild para 32.

[191] Naidoo (WCHC) para 14; Hartley v Presiding Magistrate D Court Krugersdorp Magistrates Court & others (02538/2015) [2015] ZAGPJHC 75 (21 April 2015) para 7; Madiba v Director: Public Prosecutions Northern Cape (CA&R155/2015) [2016] ZANCHC 30 (3 June 2016). 

[192] Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC).

[193] Sanderson para 37.

[194] Section 342A(2)(i) of the CPA.

[195] Section 342A(3) of the CPA.

[196] Wild & another v Hoffert NO & others (CCT28/97) [1998] ZACC 5; 1998 (3) SA 695; 1998 (6) BCLR 656 (12 May 1998) para 34; Stewart Motha ‘Rationality, the rule of law, and the sovereign return’ (2011) 4 Constitutional Court Review 113; Carol C Ngang ‘Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take “other measures”’ (2014) 14 AHRLJ 655.

[197] Visser NO & others v Van Niekerk & others (5937/16) [2018] ZAFSHC 218 (9 November 2018) para 14.

[198] Section 342A(2) of the CPA.

[199] Sanderson para 37; Wild para 31.

[200] Naidoo (WCHC) para 16.

[201] Sanderson paras 41-42.

[202] Sanderson para 33; Naidoo (WCHC) para 16.

[203] Zanner v Director of Public Prosecutions, Johannesburg [2006] ZASCA 56; 2006 (2) SACR 45 (SCA).

[204] Zanner para 15.

[205] Section 342A(1) of the CPA.

[206] Section 172 (1) of the Constitution provides that when deciding a constitutional matter within its power, a court may make any order that is just and equitable.

[207] Jones and Buckle The Civil Practice of the Magistrates Court in South Africa 10th ed Volume I Act 82 [service 15, 2018] citing Voet 5 1 64 at fn 1.

[208] Naidoo (WCHC) para 3, 16, 18; v The Attorney-General of the Western Cape; S v The Regional Magistrate, Wynberg  & another  1999 (2) SACR 13 (C).

[209] Wild para 9.

[210] S v Zuma & another, Thales South Africa (Pty) Limited v KwaZulu-Natal Director of Public Prosecutions & others (CCD30/2018, D12763/2018) [2019] ZAKZDHC 19; [2019] 4 All SA 845 (KZD); 2020 (2) BCLR 153 (KZD) (11 October 2019) paras 116-125; S v Naidoo paras 30-31, citing Broome v Director of Public Prosecutions, Western Cape, & others; Wiggins & another v Acting Regional Magistrate, Cape Town, & others 2008 (1) SACR 178 (C)  and Bothma v Els & others 2010 (2) SA 622; 2010 (1) SACR 184;  2010 (1) BCLR 1 (CC) paras 81-82. See also Mokoena v The State (200/2018) [2019] ZASCA 74 (30 May 2019) para 6, for the requirement of ‘exceptional circumstances’ when applying s 342A(3)(d). See Van Heerden & another v NDPP & others (145/2017) [2017] ZASCA 105 (11 September 2017) para 45, a case involving delays by the prosecution; an application for a permanent stay of prosecution was described as ‘an extraordinary remedy’.

[211] Broome paras 75-83.

[212] Naidoo v Regional Magistrate, Durban & another 2017 (2) SACR 244 (KZP); [2017] ZAKZPHC 19.

[213] Naidoo (KZNHC) para 12.

[214] Naidoo (KZNHC) para 6.

[215] Naidoo (KZNHC) para 21.

[216] Naidoo (WCHC) para 18.

[217] Naidoo (KZNHC) para 22.

[218] Naidoo (KZNHC)para 25. See also para 20: ‘S 170 of the Constitution does not confer jurisdiction on the magistrates’ courts to hear applications not authorised by an Act of Parliament.’

[219] Naidoo (KZNHC) para 18.

[220] Director of Public Prosecutions KwaZulu-Natal v Regional Magistrate, Durban & another 2001 (2) SACR 463 (N).

[221] Naidoo (KZNHC) para 19-21.

[222] Coetzee & others v Attorney General of KwaZulu-Natal & others 1997 (3) All SA 241 (D).

[223] S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (SA).

[224] Coetzee at 255.

[225] DPP (KZNHC) at 5- 6.

[226] Naidoo (WCHC) para 11. For the opinion in Naidoo (KZNHC) see para 19 in which the court adopted para 16 of Naidoo (KZNHC), and 20.

[227] Section 16 of PEPUDA.

[228] Zuma para 17; Masiya para 68; section 39(1) and (2) of the Constitution.

[230] Section 171 of the Constitution.

[231] S v Zuma (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (SA).

[232] S v Scholtz & others 1996 (2) SACR 623 (C) at 624.

[233] Masiya v Director of Public Prosecutions, Pretoria & another (Centre for Applied Legal Studies & another, AMICI CURIAE) 2007 (5) SA 30 (CC).

[234] Qozeleni v Minister of Law and Order & another 1994 (1) BCLR 75 (E); 1994 (3) SA 625 (E).

[235] S v Zuma (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (1) SACR 568 (CC); 1995 (4) BCLR 401 (SA).

[236] New Nation Movement NPC and Others v President of the Republic of South Africa & others (CCT110/19) [2020] ZACC 11.

[237] Camps Bay Ratepayers' and Residents' Association and another v Harrison and another 2011 (4) Sa 42 (CC) para 28;

[238] Turnbull-Jackson v Hibiscus Coast Municipality and others 2014 (6) Sa 592 (CC) para 54; Francois du Bois Wille’s Principles of South African Law at 86-92; Malcolm Wallis ‘Whose decisis must we stare’ 2018 SALJ 1.

[239] Hlatshwayo v Mara and Deas 1912 AD 242.

[240] Hlatshwayo at 249.

[241] S v Vontsteen 1972 (4) SA 551 (A) at 552 citing Hlatshwayo at 259; Solomon v The Magistrate, Pretoria & another 1950 (3) SA 603 (T) at 616.

[242] R v Simelane 1958 (2) SA 302 (N) at 305.  For an ‘exceptional situation’ where an accused was allowed to testify, see the judgment in Botswana of State v Same alias Tshetlha 1984 BLR 64 (HC).

 

[243] Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) paras 43 - 44.

[244] Uniform rule 53(1)(b).

[245] Uniform rule 53(3).

[246] Johannesburg City Council v The Administrator, Transvaal & another (1) 1970 (2) SA 89 (T); MEC for Roads and Public Works, Eastern Cape, & another v Intertrade Two (Pty) Ltd 2006 (5) SA 1 (SCA) para 15, citing Johannesburg City Council at 91G-92A. See Cora Hoexter Administrative Law in South Africa (2012) at 526; JR de Ville Judicial Review of Administrative Action in South Africa (2005) at 308.

[247] Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) (24 April 2018) paras 15 and 16.

[248] Helen Suzman Foundation para 17.

[249] Helen Suzman Foundation para 19.

 

[250] Department of Transport v Tasima (Pty) Ltd 2017 (2) SA 622 (CC).

[251] Jones and Buckle The Civil Practice of the Magistrates Court in South Africa 10th ed Volume I Act 82 [service 15, 2018].

[252] S v Naidoo 2012 (2) SACR 126 (WCC).

[253] Naidoo (WCHC) paras 19-34.

[254] Naidoo (WCHC) para 27.

[255] Naidoo (WCHC) para 1.

[256] Zanner v Director of Public Prosecutions, Johannesburg [2006] ZASCA 56; 2006 (2) SACR 45 (SCA) para 1.