Rex v Keeves

• Jurisdiction: South Africa
• Judge: Innes CJ and Kotzé JA
• Judgment Date: 18 June 1926
• Citation: 1926 AD 410
• Hearing Date: 15 June 1926
• Court: Appellate Division

Innes, C.J.:

This is an application for leave to appeal from an order of the Cape Provincial Division dismissing a summons for the review of certain criminal proceedings taken against the applicant before the magistrate of Simonstown. The summons was issued under Rule 190 (Cape), and was drawn in due and usual form. And a preliminary question arises, whether leave is necessary in such a case, or whether an appeal lies to this Court as of right? That depends upon whether the word "appeal" in sec. 105 of the South Africa Act covers review proceedings of this nature; if it does, then special leave is necessary; otherwise not. The point, apparently, has never been decided. In Doyle v Shenker & Co. (1915, A.D., p. 233), it was raised in substance, though not in form; the respondent suggested that the party aggrieved by the finding of a Provincial Division in review proceedings like the present had a right of appeal under sec. 104 of the South Africa Act, and that an application for leave should not be entertained. But the view which the Court took of the whole matter enabled it to dispense with a decision of the preliminary objection. For, assuming that leave was required, it came to the conclusion that on the merits an appeal would be hopeless, and therefore dismissed the petition. Attorney-General (Transvaal) v Levy (1925, A.D., p. 378) was an application for special leave to appeal against a decision of a Provincial Division on a summons for the review of criminal proceedings; the petition was dealt with and refused, without any reference to the point now under consideration. On the other hand, in District Commandant SA Police v Murray (1924, A.D., p. 13), an appeal against an order of a superior court in review proceedings under Rule 190 was entertained without, so far as the report shows, any reference to a prior grant of special leave. Such leave may, nevertheless,

Innes, C.J.

have been asked and given; in any event the point was not brought to the notice of the Court. But the practice in these cases should now be settled. The decisions of superior courts, on summonses for review under Rule 190 (Cape) or any corresponding rule in other provinces, should be regarded as governed by the provisions of sec. 105 of the South Africa Act - review in such cases being regarded as a form of appeal for the purposes of that section. The word "appeal" in a wide sense may well include such review, though the difference between the two forms of procedure is in other respects important and well marked. Such an interpretation of sec. 105 is not only justified, but it is convenient in practice. For the same magisterial decision may sometimes be impeachable either by ordinary appeal to the Provincial Division or by a summons for review. And it would be a remarkable position if in the one case the matter could only be brought into this Court on special leave given, while in the other it could be taken here as of right. The above remarks are, of course, confined to review proceedings under Rule 190 or other similar rule. They have no application to matters for review in a wider sense which may come before superior courts. But in the present case it is clear that the petition for leave to appeal is necessary and proper. The, question whether we should accede to the petition involves a consideration of the merits. The applicant had been charged with, and was being tried for, the crime of indecent assault. Evidence had been led, argument had been heard, and the magistrate was considering his decision, when the prosecutor requested that the proceedings should be converted into a preparatory examination. The magistrate acceded to that request; and it is his action in so doing of which the applicant complains. Whether the step taken at that stage was justified or not depends upon the interpretation of sec. 90 of Act 32 of 1917, which is in the following terms: - "When in the course of any trial it appears that the offence under trial is from its nature or magnitude only subject to the jurisdiction or more proper for the cognisance of a superior court, or when the public prosecutor so requests, the presiding judicial officer shall stop the trial, and the proceedings...