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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

Case No: B1054/04

In the Full Bench Special Review of:

THE STATE

and

HENRY ENGELBRECHT AND THREE OTHERS

JUDGMENT DELIVERED: 28 JANUARY 2005

FOURIE, J:

[1] The accused appeared in the Paarl Magistrate’s Court on a charge of robbery with aggravating circumstances. At the commencement of the trial the magistrate heard argument whether he had jurisdiction to hear the matter or whether it should be referred to the regional court for hearing. The magistrate concluded that he did not have the necessary jurisdiction to hear the matter and ordered that it be transferred to the regional court. In short, the magistrate found that as the offence is one of the offences referred to in the Criminal Law Amendment Act No. 105 of 1997, only a regional or High Court has the necessary jurisdiction to hear it.

[2] The trial did not, however, proceed in the regional court. It appears that there is a difference of opinion between the regional and district magistrates as to whether the magistrate’s court has jurisdiction to hear the matter. An agreement was apparently reached to refer the matter to this court for special review in terms of section 304A of the Criminal Procedure Act No. 51 of 1977, as amended. In his written reasons requesting a special review, the magistrate says the following:

“Ter wille van regsekerheid word dit egter by ooreenkoms tussen streekhofpersoneel, die senior landdros, Paarl en die vervolgingsgesag by wyse van spesiale hersiening aan die Hoërhof voorgelê vir beslissing en daarstelling van ‘n presedent met betrekking tot die forum en jurisdiksie by sekere sake onderhewig aan die Wet op Minimum Vonnisse, No. 105 van 1997”.

[3] Section 304A (1) (a) of Act No. 51 of 1977, provides that if a magistrate after conviction but before sentence is of the opinion that the proceedings in respect of which he/she brought in a conviction, are not in accordance with justice, he/she may transmit the matter for review. Absent a conviction, as in the present case, the matter is not reviewable in terms of section 304A of Act No. 51 of 1977. It is also not reviewable in terms of section 302 (1) or section 304 (4) of Act No. 51 of 1977, as the accused have not been convicted and sentenced.

[4] Section 24 (1) of the Supreme Court Act, No. 59 of 1959, read with High Court Rule 53, authorises the High Court to review the decision of a lower court at any stage of the proceedings. This power can, however, only be exercised on prescribed limited grounds which do not find application in the present matter. In any event, the matter is not brought before us on application in terms of Rule 53, nor is it supported by any notice of motion or founding papers.

[5] This court also has the inherent power to review proceedings in lower courts at any stage, to restrain irregularities. This inherent power is augmented by section 35 (3) of the Constitution, Act No. 108 of 1996, which provides that every accused person has a right to a fair trial. It is, however, trite that the power of this court to review proceedings of a lower court in terms of its inherent jurisdiction, will be sparingly exercised. As stated in South African Criminal Law and Procedure, Lansdown and Campbell, Volume 5, at page 678, a High Court will not ordinarily interfere in this way before a conviction has taken place in a lower court and relief should only be granted where grave injustice might otherwise result or where justice might not by other means be attained.

See S v Lubisi, 1980 (1) SA 187 (T); S v Mametje 1979 (1) SA 767 (T) and Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A).

[6] In my view there is no conceivable reason why this court should interfere at this stage to resolve what appears to be a difference of opinion between the regional and district magistrates as to the proper forum for the hearing of this matter. The matter has been transferred to the regional court and I cannot conceive of any grave injustice which would result if the matter proceeds to its final conclusion in the regional court.

[7] I would accordingly refer the matter back to the relevant regional court for hearing.

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Fourie, J

I agree

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Dlodlo, J

I agree and it is so ordered.

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Hlophe, JP

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

Case No: B1054/04

In the Full Bench Special Review of:

THE STATE

and

HENRY ENGELBRECHT AND THREE OTHERS

Adv. For Accused : Unrepresented

Attorneys

Adv. for Respondent : Adv. S. M. Galloway

Attorneys

Date(s) of hearing : 28 January 2005

Date of judgment : 28 January 2005

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