Motata v Nair NO and Another

• Judge: Hancke J and Pickering J
• Judgment Date: 11 June 2008
• Citation: 2009 (2) SA 575 (T)
• Docket Number: 7023/2008
• Hearing Date: 03 June 2008
• Counsel: BR Tokota SC (with ZZ Matebese) for the applicant. No appearance for the first respondent. ZJ van Zyl SC for the second respondent.
• Court: Transvaal Provincial Division

Hancke J and Pickering J:

[1] This is an application for the review of a ruling made by the first respondent herein, the chief magistrate of Johannesburg, on 7 November 2007, J during the course of a criminal trial in which the applicant stands

Hancke J and Pickering J

accused of certain offences. The first respondent has elected to abide the A decision of this court, whereas the second respondent, the Director of Public Prosecutions (Witwatersrand Local Division), has opposed the relief sought herein.

[2] Applicant, a judge of the High Court, was arrested in the early hours of 6 January 2007 consequent upon a collision allegedly involving the B motor vehicle being driven by him and the boundary wall of a property belonging to a certain Mr Richard Baird. On 26 September 2007 applicant appeared in the Johannesburg magistrates' court before the first respondent charged, on count 1, with drunken driving in contravention of s 65(1) of the National Road Traffic Act 93 of 1996, as well as with certain alternatives thereto and, on count 2, with defeating or C obstructing the ends of justice, alternatively, resisting arrest in contravention of s 67(1)(a) of the South African Police Service Act 68 of 1995.

To all these charges applicant pleaded not guilty, electing not to provide any plea explanation.

[3] The first witness called by the State was the aforesaid Mr Baird. D During the course of his testimony the State sought to introduce into evidence five video clips, allegedly recorded by Mr Baird with his cellphone on the night in question. It is common cause that the video clips contain no visual images but are aural recordings which, so the State contends, constitute relevant evidence of applicant's condition and E conduct at the scene of the collision.

[4] It appears from Mr Baird's testimony that the data files relating to the video clips taken by him were stored on a so-called SD memory card in the cellphone. Later that same day Mr Baird downloaded the video clips F to his personal laptop computer thereby transferring the data from the SD memory card to the computer. On 20 August 2007, however, prior to the commencement of the trial, his cellphone had fallen and had been irreparably damaged. A digital camera with which Mr Baird had allegedly also taken certain photographs on the night in question was allegedly stolen sometime early in September 2007. The relevant SD G memory card was missing. Eventually, after the commencement of the trial, the five video files were copied from his laptop computer onto a memory stick and then onto a compact disc. A transcript of the contents of the five video clips was also made.

[5] The defence objected to the playing of the video clips in court, as well H as to the introduction into evidence of the transcript. It was submitted by counsel who represented applicant at the trial that applicant's constitutional rights to a fair trial dictated that a trial-within-a-trial be first held in order to determine the admissibility of the video clips.

Having heard argument, the first respondent ruled, on 25 October 2007, I that 'there should be a trial-within-a-trial after which the Court will give a ruling on admissibility'.

[6] On 7 November 2007 the State proceeded to lead the evidence of Mr Baird in a trial-within-a-trial and again sought to introduce the five video clips and transcript into evidence. Once again, the defence J

Hancke J and Pickering J

A objected thereto, the gravamen of the objection being that the playing of the video clips and the introduction of the transcript, prior to the court having ruled on their admissibility, would constitute a gross irregularity which would severely prejudice applicant and would, in effect, defeat the object of the trial-within-a-trial.

B The first respondent, however, was not persuaded thereby and ruled that the 'State may play the recordings and deal with the transcript in the trial-within-a-trial in order that the court may determine its admissibility after the trial-within-a-trial'.

[7] At that stage the defence applied for, and was granted, a postponement C of the trial in order to take the first respondent's ruling on review to the High Court. In due course the present application was launched in which applicant seeks the following order:

1.

That the ruling by the first respondent on 7 November 2007 to the effect that the five (5) video recordings allegedly taken by Mr Baird D at the scene of the alleged crime be played in Court during the trial-within-a-trial to test their admissibility be reviewed and set aside;

2.

That the first respondent be and is hereby ordered and directed to continue with a trial-within-a-trial without the video and audio recordings being played;

3.

E That pending finalisation of this review the respondents be and are hereby ordered, restrained and interdicted from proceeding with the criminal proceedings against the applicant in the Magistrate's Court Johannesburg under63/968/07;

4.

That the costs of this application be paid only by those respondents who oppose it.

F [8] In his affidavit in support of the application, applicant contends that first respondent's decision to allow the State to play the recordings and to adduce the evidence of the transcript thereof constitutes a gross irregularity which is 'severely prejudicial' to him in the conduct of his defence and which interferes with his constitutional right to a fair trial. G He submits, inter alia, that the 'practical effect of watching and listening and observing the recordings in court by first respondent of contested evidence is to admit in advance evidence which may be self-incriminating and as such could be difficult to erase from the mind of first respondent even if he may theoretically rule it inadmissible at the end of H a trial-within-a-trial'. Applicant submits accordingly that the intervention of this court is warranted at this stage of the proceedings to prevent a grave injustice being occasioned to him.

[9] It is trite that, as a general rule, a High Court will not, by way of entertaining an application for review, interfere with uncompleted I proceedings in a lower court. As stated in Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at 119G, the High Court will not ordinarily interfere whether by way of appeal or review before a conviction has taken place in the lower court even if the point decided against the accused by a magistrate is fundamental to the accused's guilt. At 119H - 120A Ogilvie Thompson JA J (as he then was) stated as follows:

Hancke J and Pickering J

It is true that, by virtue of its inherent power to restrain illegalities in A inferior courts, the Supreme Court may, in a proper case, grant relief - by way of review, interdict, or mandamus - against the decision of a magistrate's court given before conviction. (See Ellis v. Visser and Another, 1956 (2) S.A. 117 (W), and R. v. Marais, 1959 (1) S.A. 98 (T), where most of the decisions are collated). This, however, is a power which is to be sparingly exercised. It is impracticable to attempt B any precise definition of the ambit of this power; for each case must depend upon its own circumstances. The learned authors of Gardiner and Lansdown (6th ed., vol. I p. 750) state:

'While a superior court having jurisdiction in review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a C court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained . . .. In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by D means of review or appeal will ordinarily be available.'

In my judgment, that statement correctly reflects the position in relation to unconcluded criminal proceedings in the magistrates' courts.

At 120D, the learned judge continued: E

(T)he prejudice, inherent in an accused's being obliged to proceed to trial, and possible conviction, in a magistrate's court before he is accorded an opportunity of testing in the Supreme Court the correctness of the magistrate's decision overruling a preliminary, and perhaps a fundamental, contention raised by the accused, does not per se F necessarily justify the Supreme Court in granting relief before conviction (see too the observation of MURRAY, J., at pp. 123-4 of Ellis' case, supra). As indicated earlier, each case falls to be decided on its own facts and with due regard to the salutary general rule that appeals are not entertained piecemeal.

[10] In Ismail and Others v Additional Magistrate, Wynberg and Another G 1963 (1) SA 1 (A), the following was stated at 5H - 6A:

I should point out that it is not every failure of justice which would amount to a gross irregularity justifying interference before conviction. As was pointed out in Wahlhaus and Others v. Additional Magistrate, Johannesburg and Another, 1959 (3) S.A. 113 (A.D.) at p. 119, where the error relied upon is no more than a wrong decision, the practical H effect of allowing an interlocutory remedial procedure would be to bring the magistrate's decision under appeal at a stage when no appeal lies. Although there is no sharply defined distinction...