Rex v Milne and Erleigh (6)

• Jurisdiction: South Africa
• Judge: Centlivres JA, Greenberg JA and Schreiner JA
• Judgment Date: 11 October 1950
• Citation: 1951 (1) SA 1 (A)
• Hearing Date: 09 October 1950
• Court: Appellate Division

B Centlivres JA:

This is an application by the second accused to set aside his convictions and sentences on the ground that the learned trial judge who sat with two assessors was biassed In his petition the accused alleged that he was a builder developer and pioneer of C constructive enterprise and came under the general term of a financier that he was regarded as a wealthy capitalist that he had had extensive transactions in shares on his own account from which he had profited considerably and that he was a large landowner He and the first accused were convicted on certain counts of theft and fraud in relation to certain dealings in shares in companies and they were also convicted of D contravening certain sections of the Companies Act.

The ground on which it is alleged by the second accused that the learned trial judge was biassed is stated in his petition as follows:

'Since the trial which resulted in my being convicted upon certain E charges against which I am now appealing to this Honourable Court, certain facts which were unknown to me or to my legal advisers at the time of the trial have come to my notice. I have ascertained that His Lordship Mr. JUSTICE LUCAS who presided at my trial, thus being one of the arbiters of fact and the sole arbiter of law, has published and/or sponsored and/or been associated with continuous publication of printed pamphlets, and/or printed articles and a book, covering an F extensive period of years immediately prior to my trial,. . ., in which he has expressed continuous views clearly hostile and inimical to persons coming under my category, to such an extent that I verily believe that I did not have nor could I have had a fair trial.'

During the course of the hearing counsel for the first accused filed an G affidavit made by his client setting forth that he (the first accused) only became aware of the publications referred to by the second accused after the judgment and sentence in his trial. The first accused's counsel associated himself with the second accused's application.

The first point that arises for consideration is one of procedure and the question that arises is whether this Court has any jurisdiction to H consider this application. It was contended by Mr. Beyers, on behalf of the second accused, that the present proceedings were by way of review and that this Court has an inherent jurisdiction to consider the application. This Court was created by the South African Act and its jurisdiction is to be ascertained from the provisions of that Act as amended from time to time and from any other relevant statutory enactment. There is no provision in

Centlivres JA

that or any other Act conferring a review jurisdiction in criminal matters on this Court. Prior to the decision in Rex v Kalogeropoulos, 1945 AD 38, the jurisdiction of this Court to entertain an application for special leave to appeal in criminal cases heard by a superior court A was described as 'inherent', 'assumed' or 'extra-statutory' (vide Rex v Kalogeropoulos (supra at p. 43)). In that case it was pointed out by WATERMEYER, C.J., that in Rex v Didat, 1913 AD 299, this Court construed sec. 104 of the South Africa Act as impliedly investing it with that jurisdiction and it was held that that jurisdiction did not B exist by virtue of inherence nor was it acquired by assumption or in some extra-statutory way. The learned CHIEF JUSTICE stated that it would be better to give that jurisdiction the name of extraordinary criminal jurisdiction, thereby contrasting it with the Court's ordinary criminal jurisdiction under Chap. XX of Act 31 of 1917.

C Any power which this Court might by implication have had under sec. 104 of the South Africa Act in its unamended form to review proceedings in criminal cases heard by a superior court has now been abolished by sec. 2 of Act 37 of 1948 which amends sec. 104 of the South Africa Act D in such a manner as to confine its operation to civil cases.

Mr. Beyers contended that this Court, by the very fact of its being the highest court in the land, has the power to hear an application for the review of the proceedings of a provincial or local division. No E authority was quoted for the proposition that a Court such as this Court, which was created by statute, has any jurisdiction beyond what is conferred on it by statute. The jurisdiction contended for by Mr. Beyers is not a jurisdiction which is incidental to a jurisdiction conferred by statute but a jurisdiction to hear a matter which is not provided for in the statute.

F Mr. Beyers further contended that, assuming that his client had a just cause of complaint, he would be remediless unless this Court assumed jurisdiction. There is no substance in that contention, for in my view his client would have a remedy under sec. 370 of Act 31 of 1917 as substituted by sec. 8 of Act 37 of 1948. Sub-sec. (1) of that section is as follows:

'(1)

G If an accused person thinks that any of the proceedings in connection with or during his trial (whether by jury or not) before a superior court are irregular or not according to law, he may,. . . apply for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular or not according to law and such a special entry shall, upon such application, be made unless the court to H which or the Judge to whom application is made is of opinion that the application is not made bona fide, or that it is frivolous or absurd, or that the granting of the application would be an abuse of the process of the Court.'

In my view there can be no doubt that if a Judge, who ought not, because he is biassed, to preside at a criminal trial, nevertheless does so he commits, within the meaning of sub-sec. (1), an irregularity in the proceedings every minute he remains on the bench during the trial of the accused. If he refuses to make a special entry, the accused may, under sub-sec. (6) of sec. 370, apply

Centlivres JA

to the Court of Appeal for a special entry to be made on the record. Under sec. 374, of the Act as substituted by sec. 12 of Act 37 of...