Rex v Andrews and Others

• Jurisdiction: South Africa
• Citation: 1948 (1) SA 18 (W)

Rex v Andrews and Others
1948 (1) SA 18 (W)

1948 (1) SA p18

Citation	1948 (1) SA 18 (W)
Court	Witwatersrand Local Division
Judge	Van den Heever J and Roper J
Heard	October 16, 1947
Judgment	October 16, 1947

Flynote : Sleutelwoorde

Criminal procedure — Trial — Preparatory examination held in one Province — Request by accused for removal to another Province — Other persons subsequently joined as co-accused — No request nor consent from such persons for holding of preparatory examination in such Province — Record dispatched to Attorney-General of Province other than that in which preparatory examination held — Indictment of accused by such Attorney-General — Application for Special Court by such Attorney-General — Effect.

Headnote : Kopnota

A preparatory examination was opened in Johannesburg against seven accused, all of whom were resident in Cape Town, in respect of an offence alleged to have been committed within the jurisdiction of the Transvaal. Thereafter, at the request of the defence attorney and with the consent of the Minister of Justice, the matter was removed to Cape Town, where, after evidence had been led, the magistrate had committed the accused for trial. On the instruction of the Attorney-General of the Transvaal the case was reopened in order that two further accused should be joined - one of whom was accused No. 9. This was done by the magistrate of Cape Town, and he then committed all the accused for trial. The record of a preparatory examination was then sent to the Attorney-General of the Transvaal, who decided to indict, and who approached the Minister for the appointment of a Special Court in terms of section 215 of Act 31 of 1917. Such Court was duly constituted in pursuance of this application. At the trial counsel for accused No. 9 contended inter alia that as the accused had been committed for trial by the magistrate in Cape Town, the Attorney-General of the Transvaal had no jurisdiction to indict and the present indictment was therefore invalid.

Held, that as accused No. 9 had not requested nor asked for the holding of a preparatory examination in Cape Town, it was to the Attorney-General of the Cape and not of the Transvaal that the record had to be sent on the conclusion of the preparatory examination.

Held, further, that the decision to indict and the application for a Special Court rested with the Attorney-General of the Cape.

Held, further, that as the discretion had not been exercised by the proper Attorney-General, accused No. 9 had been prejudiced.

Held, further, that any agreement between the two Attorneys-General as to the procedure to be followed was irrelevant.

Case Information

Criminal trial. Application by one of the accused for his discharge from the present proceedings. The nature of his application appears from the reasons for judgment.

1948 (1) SA p19

G. Lowen, for accused No. 9: This Special Court has no jurisdiction in respect of No. 9 accused. Such Court may be constituted only if the accused has been committed for trial, and the Attorney-General has determined to indict him and the charge is treason, sedition or public violence. See sec. 215 of Act 31 of 1917. Accused No. 9 has not been validly committed for trial. A committal for trial is valid only if the preparatory examination has been conducted as prescribed by statute. In the present case the preparatory examination against No. 9 was fatally defective in that the presiding officer had no jurisdiction or the prosecutor was not entitled to prosecute on behalf of the Crown, or for both such reasons. The preparatory examination was held in Cape Town and the magistrate had no jurisdiction in respect of No. 9 accused. The magistrate began the preparatory examination in respect of the other accused at Johannesburg. He went to Cape Town under sec. 84 (1) of Act 31 of 1917, after determination of the Attorney-General of the Transvaal of a 'place' by agreement of the other accused. If he sat in Cape Town as a magistrate of Johannesburg he exceeded his jurisdiction. See sec. 85 of Act 31 of 1917 and secs. 90 and 114 of Act 32 of 1944; the determination of the Attorney-General under sec. 84 (1) of Act 31 of 1917 cannot enlarge the magistrate's jurisdiction as defined in sec. 2 of Act 32 of 1944. It is submitted, in any case, that the Attorney-General of the Transvaal could not determine a place outside his own jurisdiction. 'Any place' must mean within his own Province. Compare sec. 90 (8) of Act 32 of 1944 and sec. 87 (8) of Act 32 of 1917.

No agreement was reached nor was any agreement attempted to be reached in respect of accused No. 9. If Cape Town became the venue of the preparatory examination only by the agreement of the accused, the consent of accused No. 9 was necessary before he could be joined with the other accused at Cape Town.

There was no reasonable suspicion that accused No. 9 had committed any offence together with the other accused. See L.S.D. Ltd v Vachell (1918, W.L.D. 127 at p. 134).

The Cape Town court had no jurisdiction to conduct the preparatory examination on any ground other than that of the agreement of the accused. There was no allegation that accused No. 9 had committed the offence or any portion of it in Cape Town. See sec. 84 (1) of Act 31 of 1917.

There was no waiver by...