S v Jezile

• Jurisdiction: South Africa
• Judge: Davies J
• Judgment Date: 27 November 1987
• Citation: 1988 (4) SA 929 (TkS)
• Hearing Date: 27 November 1987
• Court: Transkei Supreme Court

Davies J:

The accused appeared before the magistrate's court, Engcobo, on a charge of assault with intent to do grievous bodily harm. He was represented by an attorney. Before he was called on to plead the prosecutor applied for the withdrawal of the case and its transfer to the regional authority court. Accused's attorney objected to this application. The basis of his opposition, so it would appear, was that J the complainant

Davies J

A was closely related to the president of the regional authority court and that the accused could be prejudiced if the trial took place in that court. Accused's attorney also took the point that the 'complainant has made his choice clearly and the matter is already before the magistrate's court'. The magistrate, however, granted the application, stating that, in terms of s 5 of the Regional Authority Courts Act 13 of B 1982, the 'complainant/plaintiff' is allowed to choose his forum and that in any event there was no chance of a biased verdict. He accordingly ordered that the matter be struck off the roll and be referred to the regional authority court.

The accused's attorney thereafter addressed a 'notice' to the clerk of the court requesting that the matter be sent to the Supreme Court for C review. In that notice, apart from raising the points set out above, accused's attorney also alleged (a) that the magistrate erred 'in deciding a point... which he had, on a prior occasion, decided'; (b) that the magistrate erred in making a decision which 'in effect, deprived the accused of legal representation'.

D The magistrate has forwarded the record to the Registrar under cover of a letter in which he asks the Registrar to 'place the case before the honourable reviewing Judge in Chambers' and in which he submits that he did not err in his decision.

I sought the views of the Attorney-General, and these are contained in his opinion set out after the next paragraph of this judgment. I agree E with what is there set out, and the Deputy Attorney-General is to be complimented on his thorough and helpful exposition. I would stress that if the accused wished to bring the matter on review his only course would have been to proceed under s 7 of the Supreme Court Act, alleging gross irregularity in the proceedings.

F I would also add that, in regard to the prohibition of legal representation in the regional authority court, the presiding officer of one such court, with whom I raised the question of the procedure under which an accused comes to be tried in that court, informed me that as a matter of practice if any accused appearing before him wished to be legally represented the court would arrange for the case to be transferred to a magistrate's court.

G The Attorney-General's opinion reads as follows:

'It is not clear at all what procedure was relied upon to bring this matter before the honourable reviewing Judge. Obviously it is not by way of automatic review, and equally obviously it cannot be by virtue of s 319(4) of the Criminal Procedure Act 13 of 1983 (Tk), since that section H is applicable only to review after sentence. In...