Director of Public Prosecutions: Gauteng Division, Pretoria v Mathebula and Another (A110/2018) [2020] ZAGPPHC 514 (28 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

APPEAL CASE NO: A110/2018

25/8/2020

In the matter between:

DIRECTOR OF PIBLIC PROSECUTIONS:

GAUTENG DIVISION, PRETORIA

Appellant

And

ROMEO MATHEBULA

First Respondent

COLLEN MANGANYE

Second Respondent

JUDGMENT

ENGELBRECHT, AJ:

Introduction

[1] This matter is on appeal from and with leave of the Regional Court Pretoria. The charges proffered against the Respondents were robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act 51 of 1977 ('the Act') and theft, respectively.

Facts

[2] On 8 October 2013 the first respondent was arrested and he appeared again on 22 October 2014. The second respondent's arrest was effected on 14 March 2014. Both respondents pleaded to the respective counts on 29 July 2015. In the course of the trial there was uncertainty as to how far the trial progressed with the Public Prosecutor insisting that the court transcript be obtained in order to avoid all uncertainty. To this end and on 20 September 2016 the presiding officer granted the Public Prosecutor an indulgence and the matter was postponed to obtain the court transcript. Since then the said matter was postponed on numerous occasions until 14 March 2017 at which point in time the Prosecutor once again requested a postponement to obtain the Court transcript. In said request the Public Prosecutor intimated that despite the numerous postponements granted the full transcript was not yet available. Mr Sibiya for the second respondent objected to a further postponement on the basis that an order in terms of section 342 A of the Act was made and continuously extended. On said date and in terms of section 342A (3) (d) of the Act the presiding officer refused a further postponement and deemed the State case to be closed. Both Accused were found not guilty and discharged on the respective

charges.

Issues

[3] The issues to be decided on appeal are:

- Was there correct application of section 342A of the Criminal Procedure Act 51 of 1977; and/ or

- Was the Regional Magistrate correct to deem the State case to be closed and to mero motu dispose of said matter.

Law

[4] Section 342A of the Criminal Procedure Act 51 of 1977 reads:

342A Unreasonable delays in trials

(1) A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness.

(2) In considering the question whether any delay is unreasonable, the court shall consider the following factors:

(a) The duration of the delay;

(b) the reasons advanced for the delay;

(c) whether any person can be blamed for the delay;

(d) the effect of the delay on the personal circumstances of the accused and witnesses;

(e) the seriousness, extent or complexity of the charge or charges;

(f) actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;

(g) the effect of the delay on the administration of justice;

(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued;

(i) any other factor which in the opinion of the court ought to be taken into account.

(3) If the court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order-

(a) refusing further postponement of the proceedings;

(b) granting a postponement subject to any such conditions as the court may· determine;

(c) where the accused has not yet pleaded to the charge, that the case be struck off the roll and the prosecution not be resumed or instituted de novo without the written instruction of the attorney-general;

(d) where the accused has pleaded to the charge and the State or the defence, as the case may be, is unable to proceed with the case or refuses to do so, that the proceedings be continued and disposed of as if the case for the prosecution or the defence, as the case may be, has been closed;

(e) that-

(i) the State shall pay the accused concerned the wasted costs incurred by the accused as a result of an unreasonable delay caused by an officer employed by the State;

(ii) the accused or his or her legal adviser, as the case may be, shall pay the State the wasted costs incurred by the State as a result of an unreasonable delay caused by the accused or his or her legal adviser, as the case may be; or

(f) that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.

(4) (a) An order contemplated in subsection (3) (a), where the accused has pleaded to the charge, and an order contemplated in subsection (3) (d), shall not be issued unless exceptional circumstances exist and all other attempts to speed up the process have failed and the defence or the State, as the case may be, has given notice beforehand that it intends to apply for such an order.

(b) The attorney-general and the accused may appeal against an order contemplated in subsection (3) (d) and the provisions of sections 310A and 316 in respect of an application or appeal referred to in that section by an accused, shall apply mutatis mutandis with reference to a case in which the attorney-general appeals and, in the case of an appeal by the accused, the provisions of section 309 and 316 shall apply mutatis mutandis.

[5] Mokoena v The State[1]

"[6] In this respect the high court erred because in terms of s 342A(4)(a) no order shall be issued in terms of 342A(3)(d) unless exceptional circumstances exist and all other attempts to speed up the process

have failed, and the defence or the State as the case may be, has given notice beforehand that it intends to apply for such an order as provided for ins 342A(4)(a) of the Act. The requirements of s 342A(4)(a) are clearly peremptory. Thus, the defect in these proceedings was that the regional court magistrate acted mero motu in terms of s 342A(4)(a) in the absence of any notice given beforehand by the State that it intended to apply for such an order. Because the application of the provisions of s 342A(4)(a) may have far reaching consequences, it is essential that proper notice as required by the section be given to the other party so as to enable such party to prepare in advance.

[9] The grant of the order in term of s 342A(3)(d) was clearly a technical irregularity. Once an irregularity has been committed, the provisions of s 309(3) of the Act find application. Section 309(3) provides:

'. . . [N]o conviction or sentence shall be reversed or altered by reason of any irregularity ... in the record or proceedings, unless it appears ... that a failure of justice has in fact resulted from such irregularity '

The question thus arises whether the irregularity in question resulted in a failure .of justice. The answer is clear. In S v Naidoo 1962 (4) SA 348 (A) and S v Moodie 1962 (1) SA 587 (A), a technical irregularity was described as one which justified the setting aside of a conviction by the court of appeal where it precluded valid consideration of the merits. In this case material evidence relating to a video footage was excluded. A failure of justice resulted."

[6] In the matter at hand there was no indication that the trial court considered exceptional circumstances and/ or that same existed. Neither is there an indication that all other attempts to speed up the process had failed. In this regard one would have at least expected an explanation from the Court Manager as to the continued absence of the complete transcript and/ or if there were challenges on the part of the transcribers and/ or the negative impact a further postponement would have on the respective respondents/ State witnesses/ general administration of justice. That the latter was met could have been inferred had the Court considered the factors as set out in subsection (2) of section 342A of the Act. The Court transcript does not reflect a formal or informal inquiry.

[7] An order contemplated in section 342A (3) (a) of the Act must be read with section 342A (4) (a) as the requirements are peremptory. In this matter both respondents pleaded not guilty. Neither the State nor the Respondents have notice in advance that they intended to apply for an order refusing further postponement.

[8] To this end the order and acquittal of the Court in respect of both respondents amounts to a "technical irregularity." In this matter the evidence was led. The presiding officer's finding that outstanding evidence would not make a difference does not hold. Unless of course, he had knowledge of the nature and content of the outstanding evidence and failed to disclose same. This "technical irregularity" amounted to a failure of justice.

[9] In the result the following order is made:

1. The appeal is upheld.

2. In terms of section 324(c) of Act 51 of 1977, the matter is returned to the Regional Court, Pretoria to be heard before another presiding officer.

C SARDIWALLA

JUDGE OF THE HIGH COURT

I agree,

N ENGELBRECHT

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

FOR APPELLANT Adv A P Wilsenach

Instructed by State Attorney, Pretoria

FOR RESPONDENT Mr H L Alberts

Instructed by Legal Aid, South Africa

[1] (200/2018) (2019) ZASCA 74 (30/05/19)