Sithole and another v Director of Public Prosecutions and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Daniso J and Cronjé AJ
• Judgment Date: 07 September 2023
• Citation: 2023 JDR 3455 (FB)
• Hearing Date: 27 July 2023
• Docket Number: 3239/2021
• Court: Free State Division, Bloemfontein

Cronjé AJ:

[1]

The Applicants apply for the review and setting aside of the decision of Magistrate Furstenberg of the District Court in Welkom (“the Magistrate”) who ordered the Applicants to appear before the Circuit High Court in Welkom. The Applicants abandoned a prayer declaring the substantial delay in their prosecution as a failure of justice.

[2]

The Applicants are business persons who reside in Welkom. They were arrested on 11 November 2014 and indicted with eleven (11) other accused persons. Since their arrest they appeared numerous times in the District Court of Welkom. The Applicants lodged several applications in the High Court and an appeal to the Constitutional Court to compel the State to provide further and better particulars to the charges against them.

[3]

The Applicants brought an application in this Division [1] in 2018, requesting that they be tried in the Regional Court and not the High Court. On 13 August 2018, Musi, JP et Loubser, J in this Court, reviewed and set aside the decision of the Regional Court to transfer the case to the High Court. The Court ordered that the matter be remitted back to Regional Court in Welkom.

[4]

Pursuant to that judgment, the Regional Court found that the Applicants and their co-accused were unlawfully/improperly before that Court and the matter was struck from the roll.

2023 JDR 3455 p3

Cronjé AJ

[5]

On 30 June 2021, the Applicants appeared before the Magistrate. The prosecutor, representing the First Respondent (DPP), requested that the matter be transferred to the High Court.

[6]

Section 75 of the Criminal Procedure Act [2] (CPA) provides for the hierarchical chain of courts before which accused persons shall appear:

“(1)

When an accused is to be tried in a court in respect of an offence, he shall, subject to the provisions of sections 119, 122A and 123, be tried at a summary trial in—

(a)

a court which has jurisdiction and in which he appeared for the first time in respect of such offence in accordance with any method referred to in section 38;

(b)

a court which has jurisdiction and to which he was referred to under subsection (2); or

(c)

any other court which has jurisdiction and which has been designated by the attorney-general [3] or any person authorized thereto by the attorney-general, whether in general or in any particular case, for the purposes of such summary trial.

2 (a)

If an accused appears in a court which does not have jurisdiction to try the case, the accused shall at the request of the prosecutor be referred to a court having jurisdiction.

(b)

If an accused appears in a magistrate’s court and the prosecutor informs the court that he or she is of the opinion that the alleged offence is of such a nature or...