Mshudulu v Regional Court Magistrate, Kimberley and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Lever J and Chwaro AJ
• Judgment Date: 20 May 2022
• Counsel: IJ Nel for the applicant. JJ Cloete for the respondents.
• Hearing Date: 09 May 2022
• Citation: 2023 (1) SACR 108 (NCK)
• Court: Northern Cape Division
• Docket Number: 1518/2021

Lever J (Chwaro AJ concurring):

[1] This is a review in which applicant seeks to review a decision of the trial magistrate before the finalisation of the relevant criminal trial. By way of a brief background, the applicant faces nine charges in the regional magistrates' court, Kimberley. The charges include, inter alia, corruption, an attempt to defeat the ends of justice, corruption with an alternative charge of extortion, and assault with intent to do grievous bodily harm (assault GBH). The incidents on which these charges are based date back to as early as May 2015, but appear to extend up to 2017.

[2] The applicant pleaded not guilty to all the charges and the matter proceeded to trial. During the evidence-in-chief of the first witness called by the prosecution, the prosecution wanted to introduce recordings of certain telephonic conversations the said witness had recorded of himself and the applicant. The defence objected and motivated for the procedure of a trial-within-a-trial to be followed. The trial magistrate ruled that it was not necessary to follow the procedure of a trial-within-a-trial. After the recordings were played in court the applicant moved for the matter to be postponed so that the present application, to review the decision not to follow the procedure of a trial-within-a-trial, could be launched. The trial was duly postponed for that purpose.

[3] The applicant on 23 July 2021 filed a notice of motion and supporting affidavit seeking a review under the provisions of rule 53 of the Uniform Rules of Court. The first respondent (the magistrate) has not opposed the application and abides the decision of the court. The second respondent, the Director of Public Prosecutions, Northern Cape, opposes the application and has filed an answering affidavit. The applicant has filed the reconstructed record of the relevant proceedings in accordance with rule 53(3). The applicant has indicated that he does not intend to amend his notice of motion. The applicant has not supplemented his founding affidavit. Nor has the applicant filed a replying affidavit. Nonetheless, the applicant has elected to proceed without filing a replying affidavit or supplementing his founding affidavit.

[4] The only substantive grounds raised by Mr Nel, who appeared for the applicant, to review the said decision not to follow the procedure of a trial-within-a-trial is that the recording is not the original recording and that the recording is not...