S v Mamase and Others

• Jurisdiction: South Africa
• Citation: 2010 (1) SACR 121 (SCA)

S v Mamase and Others
2010 (1) SACR 121 (SCA)

2010 (1) SACR p121

Citation	2010 (1) SACR 121 (SCA)
Case No	175/2008
Court	Supreme Court of Appeal
Judge	Mpati P, Farlam JA, Snyders JA, Kroon AJA and Leach AJA
Heard	May 20, 2009
Judgment	September 25, 2009
Counsel	RP Quinn SC (with him DJ Taljaard) for the appellants.; DA Damerell (with him NJ Carpenter) for the State.

Flynote : Sleutelwoorde

Jurisdiction — Objection to jurisdiction of court — Objection raised prior to B plea — Plea peremptory in criminal proceedings — Criminal Procedure Act 51 of 1977, ss 105, 106(1), (2) — Court having no power to decide such objection before plea — In doing so court assuming jurisdiction in circumstances where it had none. C

Jurisdiction — Offences committed outside territorial jurisdiction of court — Direction by National Director of Public Prosecutions in terms of s 22(3) of National Prosecuting Authority Act 32 of 1998 (NPAA) that investigation and criminal proceedings in respect of such offence 'be conducted and commenced within the area of jurisdiction' of another Director of Public Prosecutions — Direction issued after proceedings commenced and after D point in time when NPAA empowered issue thereof — Direction therefore not having effect of conferring jurisdiction on court — Semble: Solution to problem would have been withdrawal of charges, issue of another direction followed by service of fresh indictment.

Appeal — In what cases — Against ruling that court had jurisdiction to try E offence — Such ruling final and definitive — Decisions on jurisdiction also traditionally appealable — Ruling appealable.

Headnote : Kopnota

The appellants had been served with an indictment in the Bhisho High Court (B High Court) and in which they were charged with several counts of F contravening the provisions of the Prevention and Combating of Corrupt Activities Act 12 of 2004 and one count of fraud. The charges were alleged to have arisen in various places within and outside the area of jurisdiction of the B High Court. Thereupon the appellants gave notice that they would plead that the B High Court had no jurisdiction to try the offences allegedly committed outside its jurisdiction. Thereafter the State eventually handed in a direction by the National Director of Public Prosecutions in terms of G s 22(3)

2010 (1) SACR p122

A of the National Prosecuting Authority Act 32 of 1998 (the NPAA), stating that 'I . . . hereby direct that the criminal proceedings against the [appellants] in respect of the said offences, be commenced in the area of jurisdiction of the Director of Public Prosecutions, B'. The appellants and the State approached the trial court (the B High Court) to decide, prior to plea, whether the direction, issued well after the indictments were served on B the appellants, validly conferred jurisdiction on the B High Court. The court held that, although the direction had been issued 'at a later stage than what is provided for in the legislation', an overly technical approach achieved nothing and should be avoided. The court held that the direction was therefore valid and effective. In an appeal to the Supreme Court of Appeal, the parties were requested to address two issues not raised in their C heads of argument, namely whether the ruling made by the court a quo was appealable and whether the court a quo had the power to make a ruling of the nature that it did prior to the appellants having pleaded.

Held, that, at the time that the issue was raised and decided in the court below the appellants had not been asked to plead. Thus there was no plea in terms of s 106(1)(f) of the Criminal Procedure Act 51 of 1977 that raised the D absence or presence of jurisdiction as a justiciable issue for decision. A plea in criminal proceedings was peremptory in terms of s 105 and it was done in terms of s 106(1) and (2). It was therefore clear that the point that was decided was not an objection to the indictment, was not a reservation of a question of law and was not a plea of lack of jurisdiction. (Paragraph [7] at 126e.)

E Held, further, that the procedure of placing before a criminal court, prior to the trial commencing, an issue relevant to the validity of a step taken by the prosecuting authority in terms of the NPAA or an issue relevant to jurisdiction, but not amounting to a plea, is unknown and unprecedented. No reasons were advanced, and it might be said that none exist, why it F might be necessary for such a procedure to be accommodated when perfectly adequate structures and procedures are in place to determine issues of that nature: the criminal trial and the civil courts. (Paragraph [8] at 126f–127b.)

Held, further, that the trial court, prior to the trial commencing, had no power to decide the issue that was placed before it. However, it did, and in doing so G it assumed jurisdiction in circumstances where it had none. (Paragraph [9] at 127e–f.)

Held, further, that, on the common-cause facts, the alleged actions that formed the basis of the relevant charges were not committed within the territorial jurisdiction of the B High Court; when the indictment was served and proceedings therefore commenced, that court did not have jurisdiction; the H direction that purported to confer jurisdiction on the court was issued after proceedings had commenced, after the point in time that the NPAA (in s 22(3)) empowered the issue thereof and thus after the time that jurisdiction was determined. (Paragraph [13] at 129c.)

Held, further, that clearly the direction could not, and did not, have the effect of conferring jurisdiction on the B High Court: once the court a quo had I concluded that the direction did not meet the requirements of s 22(3), it did not have jurisdiction to deal with the matter in any way whatsoever. It was not within the powers of the court a quo to exercise a discretion and decide that the direction should be held to be effective, despite the fact that it did not comply with the empowering provisions of the relevant statute. Having done so, the court a quo finally and definitively assumed jurisdiction. J (Paragraph [16] at 129g–h.)

2010 (1) SACR p123

Held, further, that an order made by a court that is final and definitive in its effect A was capable of appeal. Furthermore, decisions on jurisdiction were traditionally appealable. (Paragraph [16] at 129i - 130a.) Appeal upheld.

Semble: Considerable delay and costs could have been avoided if a simple and practical solution to the problem was adopted: the charges could have been withdrawn, another direction issued and the appellants served with a fresh indictment. (Paragraph [17] at 130b.) B

Annotations:

Cases cited

Reported cases

Director of Public Prosecutions, Natal v Magidela and Another2000 (1) SACR 458 (SCA): dictum in para [17] considered C

Gutsche Family Investments (Pty) Ltd and Others v Mettle Equity Group (Pty) Ltd and Others2007 (5) SA 491 (SCA) ([2007] 4 All SA 223): applied

Minister of Finance and Another v Paper Manufacturers Association of South Africa2008 (6) SA 540 (SCA): applied

Nhlabathi v Adjunk Prokureur-Generaal, Transvaal, en Andere1978 (3) SA 620 (W): dictum at 631E applied D

Phillips and Others v National Director of Public Prosecutions2006 (1) SACR 78 (CC) (2006 (1) SA 505; 2006 (2) BCLR 274): dictum in para [47] applied

S v B2003 (1) SACR 52 (SCA) (2003 (1) SA 552; [2002] 4 All SA 451): referred to

S v Basson2007 (1) SACR 566 (CC) (2007 (3) SA 582; 2005 (12) BCLR 1192): dictum in paras [145] - [152] applied E

S v De Beer and Another2006 (2) SACR 554 (SCA): dictum in paras [6] - [7] applied

S v Mbokazi1998 (1) SACR 438 (N): dictum at 442h - i applied

S v Perskorporasie van Suid-Afrika Bpk1979 (4) SA 476 (T): referred to

S v Swanepoel1979 (1) SA 478 (A): dictum at 490D applied F

South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others2007 (1) SACR 408 (CC) (2007 (1) SA 523; 2007 (2) BCLR 167): dictum in paras [85] - [92] applied

Steytler NO v Fitzgerald1911 AD 295: dictum at 303 applied

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd1969 (2) SA 295 (A): dictum at 310D applied G

Transnamib Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander1993 (1) SA 457 (A): dictum at 473 - 474 applied

Zweni v Minister of Law and Order1993 (1) SA 523 (A): applied.

Unreported cases

S v Mpanbaniso (Ck case No 32/2006, Nepgen J): approved and applied. H

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 105, 106(1) and (2): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-364 and 2-366

The National Prosecuting Authority Act 32 of 1998, s 22(3): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-555. I

Case Information

Appeal from a decision in the Bhisho High Court (Miller J). The facts appear...