Wahlhaus and Others v Additional Magistrate, Johannesburg and Another

• Jurisdiction: South Africa
• Judge: Schreiner JA, Malan JA, Ogilvie Thompson JA, A B Beyers JA and Holmes AJA
• Judgment Date: 16 May 1959
• Citation: 1959 (3) SA 113 (A)
• Hearing Date: 11 May 1959
• Court: Appellate Division

Wahlhaus and Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA 113 (A)

1959 (3) SA p113

Citation	1959 (3) SA 113 (A)
Court	Appellate Division
Judge	Schreiner JA, Malan JA, Ogilvie Thompson JA, A B Beyers JA and Holmes AJA
Heard	May 11, 1959
Judgment	May 16, 1959

Flynote : Sleutelwoorde

Criminal procedure — Review or appeal — Before proceedings in D magistrate's court terminated — When Superior Court will intervene.

Headnote : Kopnota

While a Superior Court having jurisdiction in review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of criminal proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where E grave injustice might otherwise result or where justice might not by other means be attained. In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal will ordinarily be available. And while the attitude of the Attorney-General is obviously a material element, his consent does not relieve the Superior Court from the necessity of deciding whether or not the particular case is an F appropriate one for intervention. Furthermore, the prejudice, inherent in an accused's being obliged to proceed to trial, and possible conviction, in a magistrate's court before he is accorded an opportunity of testing in the Supreme Court the correctness of the magistrate's decision overruling a preliminary, and perhaps fundamental, contention raised by the accused, does not per se necessarily justify the Supreme Court in granting relief before conviction.

The decision in the Transvaal Provincial Division in Wahlhaus and Others v Additional Magistrate, Johannesburg and Another confirmed. G

Case Information

Appeal from a decision in the Transvaal Provincial Division (HILL, J., and GALGUT, A.J.). The facts appear from the judgment of OGILVIE THOMPSON, J.A.

H. C. Nicholas, for the appellants: The Court a quo had a discretion whether to grant a declaratory order, namely an order declaring that proof of the facts in the charge, as amplified by the particulars, would not render the appellants liable to conviction for fraud. There was a prayer for a substantially similar order namely '. . . an order that the indictment should be declared invalid'. Alternatively such an order was covered by the prayer for alternative relief; cf. Queensland Insurance H

1959 (3) SA p114

Co. Ltd v Banque Commerciale Africaine, 1946 AD 272. There was a concrete dispute between appellants and the Attorney-General, the second respondent. The fact that appellants were seeking, by obtaining an order A that the prosecution was not well founded, to avoid the continuance or resumption of the criminal prosecution which had been brought against them, did not constitute a bar to the issue of a declaratory order; see Attorney-General of Natal v Johnstone & Co. Ltd., 1946 AD at pp. 260 - 2. Nor did the fact that the magistrate had given a decision on the point constitute such a bar. The magistrate's decision was not a final B one. There would be no legal obstacle to his changing his mind at the end of the trial, upon a consideration of fresh argument or further authority; see Blaauwbosch Diamonds, Ltd v Union Government (Minister of Finance), 1915 AD 599. While it is true, as stated in the Attorney-General of Natal case, supra at p. 261, that where criminal C proceedings have already been commenced, a court which is asked to exercise its discretion by entertaining proceedings for an order expressly or in effect declaring that the accused is innocent, should exercise great caution before granting such an order, the Court a quo nevertheless should, in the present case, because of the special features of it, have exercised its discretion in favour of appellants. Such features were that the Attorney-General's representative virtually D consented to the procedure adopted by appellants, the main issue was one purely of law falling within a narrow compass and involving no investigation of disputed facts, the point was one going to the root of the case and the trial of the charges would raise matters of considerable complexity and would involve the calling of 60 to 70 E witnesses by the Crown and would last for several weeks. It is against the interest of the State that it should be involved in the expense of an abortive prosecution. The question of inconvenience and expense is clearly relevant in considering whether the Court should grant a declaratory order. Alternatively, the Court a quo should have granted the relief claimed on the basis that appellants' application was in F effect an appeal from the decision of the magistrate; cf. sec. 18 of Proc. 14 of 1902. The provisions of Chap. XVI of Act 32 of 1944 do not exclude the inherent jurisdiction of a Superior Court to grant relief from the consequences of an incorrect decision in an inferior court e.g. by way of mandamus or interdict; see Behrman v Regional Magistrate, G Southern Transvaal and Another, 1956 (1) SA 318. As a general rule, an appeal against a magistrate's decision should be brought only after conviction. This is not, however, a law of the Medes and Persians. Although the principle as laid down in Lawrance v Assistant Resident Magistrate of Johannesburg, 1908 T.S. 525, and Ginsberg v Additional Magistrate of Cape Town, 1933 CPD 357, is that appellate Courts will H not normally entertain appeals piecemeal, the objection in those cases was taken to certain counts only in the charge. Appeal Courts will interfere where the wrong decision of the magistrate is likely to prejudice the accused; see Cohen and Another v Assistant R.M. of Cape, 20 S.C. at p. 561, but cf. McComb v Assistant Resident Magistrate, Johannesburg and The Attorney-General, 1917 T.P.D. 717. See further Ginsberg's case, ibid; Wessels v General Court Martial and Another, 1954 (1) SA 220.

1959 (3) SA p115

An accused may be prejudiced even if, by a later correction of the error, a miscarriage of justice can be avoided; cf. Eliovson v Magid and the Second Civil Magistrate of Johannesburg, 1908 T.S. 558; Rascher v Minister of Justice, 1930 T.P.D. 810; but see Ellis v Visser and A Another, 1956 (2) SA 117. An accused will be prejudiced if the charge does not disclose an offence; see Behrman's case, supra at pp. 319 - 20. The Crown did not dispute appellants' allegation that they would suffer grave prejudice if the magistrate's decision were wrong. Therefore the matter should be referred back to the Court a quo with a direction that the application should be considered on its merits.

A. J. Heyns, for the respondents: If it is contended that the Court a quo was asked to grant a declaratory order in terms of sec. 102 of Act 46 of 1935, then such does not appear from the form in which appellants cast their petition to that Court. Even if the petition can be read as an application for a declaratory order, then, since criminal proceedings C have already been instituted and have not been withdrawn, the Court will not entertain such an...