Kader v Assistant Magistrate, Cape Town, and Another

• Jurisdiction: South Africa

Kader v Assistant Magistrate, Cape Town, and Another
1954 (3) SA 648 (C)

1954 (3) SA p648

Citation	1954 (3) SA 648 (C)
Court	Cape Provincial Division
Judge	De Villiers JP and Steyn J
Heard	May 24, 1954
Judgment	June 7, 1954

Flynote : Sleutelwoorde

Criminal procedure — Review — To be brought within a reasonable time — Satisfactory explanation for delay required — Proceedings H brought 13 months after conviction and sentence — Unsatisfactory explanation — Discretion not exercised in applicant's favour — Sentence — Accused between ages of 19 and 21 — Magistrate treating accused as an adult in one case and a juvenile in another — Propriety of in the circumstances.

1954 (3) SA p649

Headnote : Kopnota

Although there is no fixed time limit within which to bring criminal proceedings in review, these must, having regard to the circumstances of each particular case, be taken within a reasonable time. If a delay, unreasonable in point of time, ensues before the initiation of such proceedings, it is incumbent upon the applicant to provide a satisfactory explanation. If there is either no explanation or an unsatisfactory explanation - having regard to the circumstances - the Court will not exercise its discretion in favour of an applicant for review.

A A magistrate, in passing sentence on an accused who had been found guilty of theft in two different cases on the same day, had in one case treated the accused, who was 19 years of age, as an adult but, in order to avoid sending him to gaol, had imposed a fine and also a suspended sentence. In the other case, still having such object in mind and fearing the accused would not be able to pay another fine, he had invoked the provisions of section 353 of Act 31 of 1917 and, treating B the accused as a juvenile, had imposed a sentence of a whipping. The accused did not appeal and underwent the whipping imposed and had paid the fine. Some 13 months after such conviction and sentence he instituted review proceedings on the ground that it was irregular and incompetent in terms of section 353 of Act 31 of 1917 that he, having been sentenced to receive a whipping in terms of such section, should, at the same time, be sentenced to pay a fine and to a term of imprisonment.

Held, that the magistrate had not erred either in his approach to the C question of punishment or in the sentences imposed.

Quaere: Whether the proceedings were reviewable or whether the applicant's remedy was by way of appeal only.

Held, further, having regard to the lapse of time and to the unsatisfactory explanation furnished, that the Court should refuse to exercise its discretion in the accused's favour. D

Case Information

Application to review certain criminal proceedings. The facts appear from the reasons for judgment.

W. M. van den Berg, for the respondents, submitted in limine that the review was not competent. The Court, however, allowed argument to proceed in order that argument on all the issues raised might be heard together.

H. Snitcher, Q.C. (with him A. A. Purcell), for the appellant: Sec. 353 of Act 31 of 1917 is an enabling section only but if the Court elects to act under that section no other punishment may be conjoined. See Gardiner & Lansdown, pp. 562 - 3. The mere fact that the sentences F were imposed on different counts cannot affect this: R v Ndembo, 1944 CPD 91; R v Mayer, 1942 OPD 135; R v De la Rosa, 1949 (1) SA 1080; R v Ziankwasia, 1948 (1) SA 493; R v Tabajane, 1940 (1) P.H. H14. The object of the section is to keep a juvenile out of prison. It was with this in view that the Legislature excluded a whipping under G sec. 353 from the necessity of review by the Supreme Court, so that sentence could be carried out promptly; see Ex parte Minister of Justice: In re R v Mayer, 1943 AD 392. If a prison sentence is imposed at the same time the object is defeated. It would also be pointless to specify any other place to receive punishment if the accused were going to prison in any event. R v Fortuin, 1943 E.D.L. 62, is distinguishable, since in that case the magistrate had power to impose whipping other than in terms of sec. 353. E

H The spirit of an enactment relating to punishment should be given effect to. Thus, although whipping and spare diet are competently conjoined, by judicial precedent it has been held that they should not be combined: Gardiner & Lansdown, p. 543. See too sec. 350 of

1954 (3) SA p650

Act 31 of 1917. Committal to a reformatory cannot be conjoined; R v Jacobs, 1925 T.P.D. 266; Gardiner & Lansdown, pp. 543, 560; R v Tabajane, supra; R v Danster, 1940 T.P.D. J.S. S.122.

There was not sufficient evidence aliunde of the commission of the A theft. As to what is required, see R v Damane, 1950 (2) P.H. H161; R v Ndhlovu, 1947 (1) P.H. H118; R v Bokaning, 1947 (1) P.H. H47. The magistrate misdirected himself in his approach in making use of accused's plea of guilty, his admissions and his failure to cross-examine; see R v Ouka-Naran, 1946 CPD 498 at p. 501; R v Hendrikse, 1941 (2) P.H. H357.

Case Information

Review is a competent procedure in this case, firstly, since the B magistrate has imposed a greater sentence than he was entitled to, secondly, because of gross irregularity in the proceedings. The sentences were contrary to sec. 286 (1) (b) of Act 31 of 1917 and they should not have been combined. These are irregularities and the decision should be reviewed; see Gardiner & Lansdown, pp. 584 et seq. The fact C that there was no evidence of the crime committed is a ground for review: R v Richardson, 1914 CPD 669 at pp. 672 - 3; R v Strydom, 1 S.C. 60. The Court should hear the review in spite of the delay in bringing it. Accused is a juvenile and the consequences to him are very serious. Mere delay is no bar; Gardiner & Lansdown, p. 576 and cases there cited; R v Fouche, 1953 (3) SA 201.

W. M. van den Berg, for the respondents: The proceedings are not reviewable. The right of an accused person to bring his case on review is limited to the grounds set out in sec. 5 of Ord. 40 of 1828: Doyle v Shenker & Co., Ltd., 1915 AD 233 at p. 236; Ex parte Baraitser: In re E R v Baraitser, 1946 CPD 786 at p. 794. There were no gross irregularities in the proceedings. An irregularity in proceedings refers to the methods of the trial and not to the result. An incorrect judgment does not constitute an irregularity in the proceedings; Ellis v Morgan, 1909 T.S. 576 at p. 581; Nunn v Pretoria Rent Board, 1943 T.P.D. 24 at p. 26; Baraitser's case, supra, at p. 795. See too Doyle's case, supra, at pp. 236 - 8, and Baraitser's case, supra, at p. 796. The applicant F may not urge that the magistrate's decision was wrong on the facts: Gardiner & Lansdown, p. 587. D

In any event, the Court has a discretion as to whether or not it will entertain a review: Baraitser's case, supra, at pp. 797 - 8. The Court G should not exercise its discretion in applicant's favour in this case. The bringing of a matter under review because the time for appeal has expired is a procedure which will not be encouraged. The Court will refuse to entertain a review where an unreasonable period has elapsed after conviction: R v Laubscher, 27 S.C. 202 at p. 203; Scholtz v Niehaus, 1915 CPD 289 at p. 291; R v Goldberg, 1942 (2) P.H. H187.

If the Court entertains the review it will not weigh the evidence as it H would on appeal. Nor will the same weight be given to technicalities as would be the case on appeal. The Court is only concerned with the question whether the proceedings appear to be in accordance with justice: Gardiner & Lansdown, pp. 578 and 583; R v Hlatswayo, 1947 (4) SA at p. 756. There is sufficient evidence aliunde that the crime was actually committed.

1954 (3) SA p651

Where a juvenile is convicted on two or more counts he may be sentenced to corporal punishment 'in lieu of any other punishment' on one count and to imprisonment with compulsory labour on the other count or counts: R v Fortuin, 1943 E.D.L. 62.

Cur adv vult.

Postea (June 7th). A

Judgment

De Villiers, J.P.:

In...