R v Marais

• Jurisdiction: South Africa
• Judge: Maritz JP and Galgut AJ
• Judgment Date: 19 August 1958
• Court: Transvaal Provincial Division
• Hearing Date: 19 August 1958
• Citation: 1959 (1) SA 98 (T)

Galgut, A.J.:

This matter comes before the Court by way of an application to review the decision of the magistrate for the regional H division of Pretoria. He refused an application to quash the indictment. When the matter was called Mr. Schreiber, for the Crown, informed the Court that he wished to take a preliminary point. His objection in limine was to the effect that it is not competent for this Court to hear this application for review. As it was necessary to deal with the facts of the case in any event it was decided to deal with his objection and the argument as one and then give a decision on the objection.

Galgut AJ

The applicant, to whom I shall refer as the accused, was charged with culpable homicide. The charge sheet as amended alleges that the accused is guilty of culpable homicide in that during the period June, 1957, until 11th November, 1957, she performed an operation on Fransina A Hendrina Velthuysen which was unlawful and as a result of which she died. There is an alternative charge to the effect that during the same period the accused procured an abortion by inserting an instrument into the deceased or, alternatively, by administering to her noxious drugs. Particulars were called for and the Crown supplied certain of the particulars. It was stated by the Crown that it was unable to give any B more particularity as to time than the dates set out in the charge sheet or the place where or to say whether an instrument was used or drugs. The applicant contended that the charge sheet as amplified by the particulars did not indicate to the accused with sufficient clarity, firstly, the time or the place of the alleged offence or, in relation to C the alternative charge, whether the offence was committed by the use of an instrument or by the administration of drugs. Mr. van Reenen, for the accused, urges that the accused is therefore embarrassed and will be unable to plead or conduct her defence.

He submitted that where the Crown is asked to give particulars and an D accused finds that through lack of particularity he is embarrassed, the Court will order the Crown to furnish the particulars and thereby remove the embarrassment. He goes on to urge that in a case where the Crown says that it is unable to furnish those particulars and embarrassment is present, then a Court should quash the indictment and the magistrate E should have done so. He urges that this Court has got a discretion to hear the review at this stage. The Court, as I have stated, decided to hear him without in any way intimating that it had the power to review the proceedings whilst the matter was only part-heard before the...