Director of Public Prosecutions KwaZulu-Natal v Regional Magistrate, Durban and Another

• Jurisdiction: South Africa
• Judge: Hugo J
• Judgment Date: 04 April 2001
• Counsel: G Nel for the applicant.
• Hearing Date: 27 February 2001
• Court: Natal Provincial Division

Hugo J:

This is a review brought by the Director of Public Prosecutions, not in terms of the Criminal Procedure Act 51 of 1977 but in terms of Rule 53 of the Uniform Rules of Court. It is to be noted that this is a review only and that no leave to appeal was sought or granted nor indeed is an appeal before us. F

The second respondent was arrested on 1 September 1999. Initially 13 counts, adequately described as counts of child molestation were preferred against him and later a further one was added. After a number of adjournments the trial date eventually arrived on 18 September 2000. On that day there was an application on behalf of the second respondent (hereinafter referred to as the G accused) for the permanent stay of the prosecution against him in respect of certain of the counts, all of which predated 1990.

The basis for the application was that the inordinately long delay between the commission of the offence and the arrest of the accused was such that it would cause prejudice to the accused and result in an unfair trial. It was agreed that the delays subsequent to the arrest H were not unreasonable and nothing turns on them.

Following upon the initial argument by the defence, the prosecutrix asked for an adjournment in order to prepare herself to reply thereto. At the next hearing she responded by withdrawing counts 10 and 12 so that these counts no longer formed part of the application and do not I interest us in this review.

There was also an argument about the supplying of further particulars but that too, does not interest us for the purposes of this review.

In replying to the application, the prosecutrix at no time intimated that she wished to call evidence to rebut assertions made during argument or J

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to negative any inference of prejudice that might be made by virtue solely to the long delays concerned. A

After hearing argument the magistrate in a thorough judgment made the following order:

'I accordingly order that it is hereby so that counts 6, 7, 8, 11 and 14 be and are hereby quashed.'

This finding and order by the magistrate brought about the review that is presently before us. The relief sought in the review is as B follows:

'1.

That the decision of the first respondent handed down in Durban Regional Court case No 41/2952/99 on 19 September 2000 quashing five charges of indecent assault against the second C respondent, to wit counts 6, 7, 8, 11 and 14 in the charge sheet, annexure A to the applicant's founding affidavit filed herewith, be reviewed and set aside;

2.

That the aforesaid five charges be re-instituted and that the trial against the second respondent proceed on these charges as well in the aforesaid case;' D

Because the State wished to charge the accused on all the counts in one trial, the prosecution in respect of the remaining counts was adjourned pending the result of this review.

The applicant's main contention is summed up as follows in his heads of argument at para 4: E

'The first respondent had in effect ordered an indefinite stay of the proceedings. A regional court has no jurisdiction to grant a permanent stay of a prosecution as it has no inherent jurisdiction. It is a creature of statute and can only exercise those powers expressly conferred upon it by statute.'

It is true, as contended by the applicant, that the magistrate's reasons contain no reference to statute or rule empowering him to make F such an order. That of course does not mean that he did not consider the position because he did refer to certain cases that were quoted to him and his failure to mention statutes or other principles is not in my view ground for review. In any event even if he did fail to apply his mind to the principles concerned, we in this Court are able to do so and if we should find that he happened to get it right despite his G lack of application then so be it.

In his notice to abide the decision of this Court, the magistrate said that his decision was based on s 35(3)(d)(i) of the Constitution Act 108 of 1996.

I believe that this section must be read together with s 170 of the H Constitution. This section reads:

'Magistrates' courts and all other courts may decide any matter determined by an Act of Parliament, but a Court of status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conductof the President.' I

Section 35(3)(d) reads as follows:

'Every accused person has a right to a fair trial, which includes the right -

(d)

to have their trial begin and conclude without unreasonable delay.'

When taxed by the Court as to what the magistrate is supposed to have done in the light of this application and in the light of these provisions in J

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the Constitution, Mr Nel, who appeared for the applicant, was unable to give an answer, save to suggest that perhaps A 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 applicant seems to have thought that s 170 of the Constitution is not applicable to the present case because of the provision therein B that the magistrate's court may not enquire into or rule on the constitutionality of legislation. That is the very thing that the court was not doing. It 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 s 170 in terms permits the magistrate's court to decide such a C matter.

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