Ellis v Visser and Another

• Jurisdiction: South Africa
• Judge: Murray J
• Judgment Date: 03 March 1953
• Hearing Date: 03 March 1953
• Court: Witwatersrand Local Division

Murray, J.:

At the moment I am concerned only with the preliminary A objection to the hearing of the present application. The facts are in brief that the Attorney-General having declined to prosecute the present applicant, the first respondent, Visser, initiated a private prosecution against the applicant in the regional magistrate's court, Southern Transvaal, and issued summons, dated 20th January, 1953, charging the present applicant with the crime of falsitas on a main and alternative charge. These charges are concerned with certain activities within the B Mine Workers' Union. The first respondent, Visser, claims that he possesses a substantial interest in the issue of the trial arising out of the injury individually suffered by him.

The prosecution commenced in the regional court on the 31st January, C before the second respondent, Mr. Marsh. The petitioner pleaded in terms of sec. 157 (1) (g) of the Code that the prosecutor, i.e. the first respondent, Visser, had no title to prosecute.

Evidence was led on the plea on the 16th December, 1952, and such plea was dismissed by the second respondent who held that the first respondent did possess sufficient interest to institute and conduct the D prosecution. The second respondent gave a lengthy written judgment setting out the reasons for the conclusion which he had reached.

In the regional magistrate's court the case has been postponed until March 10th to afford the applicant - the accused - the opportunity of applying to the Supreme Court as he has now done for some form of E order restraining continuation of the prosecution and for a declaratory order that the first respondent Visser possesses insufficient interest justifying him to claim title to prosecute. The applicant states that if prosecution does proceed he will plead not guilty, and states that a lengthy hearing will be required on the merits of the prosecution.

Para. 12 shows the basis of the present application. The applicant F submits that the second respondent's judgment in favour of the first respondent's title is erroneous on a point of law and that the evidence he gave at the hearing of the plea does not establish first respondent in such title; and it is therefore alleged that the second respondent, that is the regional magistrate, has no jurisdiction to proceed with the trial. That is, I think, the basis of the application; and it is amplified in para. 13 by a statement that the hearing will be G protracted, lasting several weeks; and it is contended that even though the Court should ultimately acquit the applicant on the charges, he will have suffered greatly in having to face such a trial, together with the inevitable publicity and resulting stigma. Also that the legal costs in defending himself will be of considerable magnitude. On that basis he H claims an order either that the first respondent should be interdicted from proceeding with the private prosecution and that the second respondent should be interdicted from hearing the prosecution or, alternatively, a declaratory order that the first respondent is not entitled to prosecute and that the second respondent has no jurisdiction to hear the proceedings.

The preliminary objection is to this effect: It is contended that this Court has no jurisdiction to entertain the application to give the desired

Murray J

interdict or declaratory order. The contention in essence is that the only remedy the applicant has is to await the result of the prosecution and, if then convicted, to appeal to the Transvaal Provincial Division against such conviction. In the appeal he would be entitled to raise the question of the prosecutor's title. The argument is that in fact the A applicant has attempted to appeal to this Court and not to the Transvaal Provincial Division; that he is attempting to appeal before conviction; and that he is appealing on an alleged erroneous judgment of the magistrate, a judgment erroneous on a point of law.

It is submitted that there is no allegation or proof of any irregularity warranting review and, even if there were, it is contended that this B Court is not a review Court.

Before I deal with this contention it is necessary to point out that an accused person who is convicted before a magistrate or regional magistrate has the right under sec. 103 of the Magistrates' Courts Act to appeal. In terms of that section such appeal is after conviction and C is made to the Provincial Division and not to a Local Division. The accused person has no such right as a prosecutor has under the following sec. 104 to appeal on a judgment erroneous in law before conviction.

In regard to review proceedings I should also refer to the fact that the D power to review proceedings of lower courts in this Province is given in terms of the Administration of Justice Proclamation 14 of 1902, sec. 19. There the grounds are set out:

Incompetence of the Court in respect of jurisdiction;

Personal interest on the part of the judicial officer;

Malice or corruption on the part of the Judge, gross irregularity in the proceedings; and

The admission of illegal or incompetent evidence or the rejection of E legal and competent evidence.

Those are the grounds of review of proceedings and it is quite clear from sec. 18 of the Proclamation that the tribunal to review is the Provincial Division. The jurisdiction of the Local Division as set out in sec. 27 does not include that right to review...