Sita and Another v Olivier, NO, and Another

• Jurisdiction: South Africa
• Judge: Steyn CJ, Botha JA and Potgieter JA
• Judgment Date: 17 March 1967
• Citation: 1967 (2) SA 442 (A)
• Hearing Date: 03 March 1967
• Court: Appellate Division

Botha, J.A.:

On 20th January 1966, the appellants appeared in the Pretoria Magistrate's Court at a preparatory examination into a charge C of a contravention of sec. 23 (1) of the Group Areas Act, 77 of 1957. Both were committed for trial. Thereafter the Attorney-General of the Transvaal gave directions, in terms of sec. 79 (1) (b) of the Criminal Procedure Act, 56 of 1955, for the trial of the appellants before the Court of the Pretoria Regional Division. Upon being arraigned in the D regional court on 8th August, 1966, the appellants refused to plead to the charge and, relying on sec. 190 (1) of the Criminal Procedure Act, demanded that their case be tried before a Superior Court having jurisdiction. The regional magistrate, regarding himself bound by the judgment in Olivier v Regional Magistrate, Transvaal and Another, 1957 (3) SA 9 (T), in which it was held that sec. 190 (1) does not entitle an accused person to demand trial by a Superior Court where the E Attorney-General has, in terms of sec. 79 (1) (b), directed that the matter be tried by a regional court, rejected the appellants' demand and declined to act in terms of sec. 190 (2). The matter was then postponed at the request of the appellants to enable them to approach the Transvaal Provincial Division for the necessary relief. In due course F the appellants applied to that Division on notice of motion for an order -

'(a)

declaring that they are entitled to demand a trial in the Transvaal Provincial Division of the Supreme Court of South Africa, in terms of sec. 190 (1) of the Criminal Procedure and Evidence Act, 56 of 1955, upon a charge of contravening sec. 23 (1) of the Group Areas Act, 77 of 1957;

(b)

restraining the first respondent from calling upon them to plead before him to the said charge;

(c)

directing the first respondent to act in terms of sec. 190 (2) of G the Criminal Procedure and Evidence Act, 56 of 1955.

(d)

directing the second respondent to act in terms of sec. 190 (2) of the Criminal Procedure and Evidence Act, 56 of 1955;

(e)

directing the respondents in their said capacities to pay the costs of the application.'

H The reference to the Criminal Procedure and Evidence Act is, of course, an erroneous reference to the Criminal Procedure Act.

The Transvaal Provincial Division, holding that the full Court's decision in Olivier's case, supra, has not been shown to be incorrect, refused the application. It is against this decision that the appellants have appealed to this Court.

At the hearing of the appeal counsel for the second respondent, relying on the provisions of sec. 21 (2) (a) of the Supreme Court Act, 59 of 1959, contended in limine that the decision of the Transvaal Provincial Division is not appealable as of right, and as neither that Division nor

Botha JA

this Court has, in terms of the said section, granted the necessary leave to appeal, this Court has no jurisdiction to hear the matter.

Sec. 21 (2) (a) of the Supreme Court Act provides, in so far as it is relevant to this enquiry, that -

'There shall be no appeal to the A appellate division . . . on any decision given by any division on appeal to it, except with the leave of the court against whose decision the appeal is to be made: Provided that where such leave has been refused, the appellate division may, on application made to it, grant such leave . . .'

Counsel's contention was that the decision appealed against was given by the Transvaal Provincial Division 'on appeal to it' against the decision B of the regional court given in criminal proceedings instituted in that court, and that the provisions of sec. 21 (2) (a) of the Supreme Court Act therefore apply in relation to a further appeal to this Court. Counsel for the appellants contended, on the other hand, that the matter on which the Transvaal Provincial Division gave its decision was not a C criminal but a civil matter which as such could only have originated in that Division and not in the regional court, and that the decision given by it was therefore not given on an appeal to it from the regional court, and that no leave to appeal against that decision was accordingly required in terms of sec. 21 (2) (a).

D In order to determine the question whether the decision now appealed against was given by the Court a quo on an appeal to it against the decision of the regional magistrate, it is necessary to have clarity in regard to the nature of the proceedings brought in the Transvaal Provincial Division. The normal remedy available to an accused person against a wrong decision given by an inferior court...