du Toit v Sonnenberg NO and Another (10831/2010) [2012] ZAWCHC 219 (21 September 2012)

IN THE HIGH COURT OF

SOUTH AFRICA

[WESTERN CAPE HIGH COURT, CAPE TOWN]

In the matter between:

Case no: 10831/2010

PHILIP

DU TOIT .............................................................................Applicant

And

MS S SONNENBERG N.O. ...............................................................1st Respondent

DIRECTOR

OF PUBLIC PROSECUTIONS ........................................2nd Respondent

JUDGMENT DELIVERED FRIDAY, 21 SEPTEMBER 2012

LE GRANGE, J:-

[1] This is an application for the review and setting aside of the proceedings in case no ASH73/2007, including the convictions of Mr P Du Toit ("the Applicant") on 17 November 2009. The Applicant was charged in the Regional Court, Atlantis, with eight counts of contravening provisions of Regulations relating to the Marine Living Resources Act No 18 of 1998 ('the Act')/ namely the possession, transport of and dealing in abalone (perlemoen).

[2] All the charges in this matter relate to the possession and transport of abajone, commonly known as perlemoen, without a permit, The Applicant pleaded not guilty to all the charges. At the time he was represented by Adv Nortje, The Instructing attorney, according to the record, was Mr Goudla, from Goudla and Associates.

[3] The Applicant states that the facts relating to the criminal charges, which the State alleges he committed, were admitted from the beginning of the trial His defence is that he was recruited as an agent by certain members of the National Intelligence Agency (‘NIA’) to infiltrate and/or penetrate abalone harvesting ; syndicates. Alternatively, he states that he was at all times of the belief that he; had : been instructed to perform these tasks by persons who had been authorised in terms of the South African law to instruct him to do so.

[4] The Applicant also states that the sole issue relating to his guilt or otherwise ; was whether he was in fact, or officially, an agent for the NIA with the task to infiltrate and penetrate the abalone harvesting syndicates; or if not, whether he Was : justified in believing that he was authorised to act as such an agent.

[5] On 17 November 2009 the Magistrate at Atlantis, having heard the evidence presented by the State and the Defence, convicted the Applicant of four of the eight counts, those being counts 1, 4, 5 and 7. He was found not guilty on the remainder. The matter was thereafter postponed to 21 January 2010 for sentence proceedings and for the Applicant to obtain a probation officer's report. The matter did not proceed, as the Applicant thereafter launched this application on 26 May 2010.

[6] Since then, there has been some delay In hearing this matter. One of the reasons for the delay was the complaint by the Second Respondent that the full record was not properly made available for review. The Applicant's present attorney of record filed an affidavit as to the reasons why a reduced version of the record was initially filed for review. I deem it unnecessary for the present purpose to repeat these reasons. The full record of the proceedings in the lower court is now before us for consideration.

[7] The Applicant has clothed his grounds of review under the Constitutional; guarantees of the right to a fair trial. The grounds

of review also comprise, Inter alia complaints in respect of the magistrate's alleged bias against the Applicant, the unprofessional

conduct of the prosecutor and regarding the applicant's inability to access vital information in the possession of the NIA that could have assisted in his defence.

[8] The Applicant's principal fear is that a failure to review the matter, as it stands at present, may well lead to his incarceration.

According to the Applicant, the probability of incarceration is more prevalent in the present instance, when consideration is given, as he sees it, to the strong biased attitude of the magistrate against him. The Applicant contends, essentially on these grounds, that this is a case where the intervention by way of review in medias res, is appropriate.

[9] The magistrate, as First Respondent, filed an .affidavit abiding the decision of this Court. In this affidavit she expressed the view that she at all times acted bona fide in her capacity as a presiding officer.

[10] The Second Respondent opposes the relief sought by the Applicant. The prosecutor in the lower court has filed an affidavit in this regard.

[11] Counsel for the Applicant, Mr T N Price, argued that the grounds relied upon by the Applicant individually may not be regarded as a 'grave injustices' but, taken collectively, seriously infringed the Applicant's right to a fair trial. He states further that it would be a grave injustice if this matter was not reviewed and the convictions set aside at this juncture already.

[12] The State Advocate, Ms D A Greyling, contended that the grounds the Applicant is relying upon for this review are nothing more than grounds for an appeal and is there no merit in the bringing of this application, whether at this stage or at all.

[13] As a result of the view taken in this instance, I deem it unnecessary to deal: with the merits of the review. The initial question is whether an intervention by. way of review in medias res is justified in the circumstances of this matter.

[14] Our law is replete with case law as to the requirements that must be met before a Superior Court will entertain an application for review in respect of incomplete proceedings in a lower court.

[15] As a general rule a Superior Court will not by way of entertaining 'an

application for review interferes with incomplete proceedings in an inferior court. It

will, however, exercise its inherent power to restrain illegalities in inferior courts in

rare cases where grave injustice might otherwise result, or where justice might not

by other means be attained. In S v The Attorney-General of the Western Cape: S v

The Regional Magistrate, Wynberq and Another 1999 (2) SACR 13 (C), at 22erf,

where the following approach was adopted:

'For purposes of the review application, the proper approach, in our view, is to consider whether the applicant has made out a case for departing from the genera! ruie that it is undesirable in criminal proceedings to entertain appeals and/or reviews before the trial has been concluded. To put the same test in different terms: is this one of those rare cases where grave injustice might otherwise result if we do not interfere before criminal proceedings have been finalised or where justice might not by other means be attained?

[16] This approach was again confirmed by the Supreme Court of Appeal in Van Per Merwe v NDPP 2011 (1) SACR 94 (SCA) where the following was held at 102f:

'It was well-established before the present constitutional era that a criminal trial is not to be conducted piecemeal, and that continues to apply today. An accused is .not entitled to have the trial interrupted - or to have it not even begin - so as to have alleged irregularities reviewed by another court in the course of the trial.'

[17] In the matter of National Director of Public Prosecutions v Kina 2010 (2) SACR

146 (SCA) at 152a, Harmse DP stated the following;

'Fairness is not a one-way street conferring, an . unlimited right on. an accused to demand the most favourable possible treatment but. also requires fairness to the public as represented by the State. This, does not mean that the accused's rightV should be subordinated to the public's interest in the protection and suppression of crime; however, the purpose of the fair trial

provision is not to make it impracticable to conduct a prosecution. The fair trial right does not mean a predilection for technical

niceties and ingenious legal stratagems, or to encourage {preliminary litigation - a pervasive feature of white-collar crime cases in this country. To the \ contrary: courts should within the confines of fairness actively discourage preliminary litigation.

[18] The substratum of the Applicant's case is that he will suffer a grave injustice if the matter is not at this instance reviewed, as there is a real likelihood of him being incarcerated.

[19] The Applicant's fear of incarceration, whether perceived or real, can hardly be one of those exceptional cases where grave injustice might otherwise result, or where justice might not by other means be attained, taking into account the provisions of our law with reference to bail after sentence. In my view, this is not one of those rare cases where this Court should intervene before the conclusion of the trial in the Regional Court. Moreover, on closer scrutiny, the complaint by the Applicant is not so much against the method the magistrate employed in conducting the proceedings, but against the result of those proceedings, and, as such, in those circumstances an appeal would be the means by which justice can otherwise be obtained.

[20] In my view, this application was prematurely brought to Court. The approach adopted in Haysom v Additional Magistrate, Cape Town and Another: S v Havsom 1979 (3) SA 155 (C) at 160G, even though this was considered before the present Constitutional era, is in my view apposite in this instance, where the following was stated:

‘...I do not think that, regard being had to the provisions of the jaw with reference to the granting of bail, these circumstances are exceptional in any way. In any criminal proceedings an accused, who is required to await the conclusion of his trial before questioning in a Superior Court a magistrate 's ruling on an objection in limine at his trial, is placed in similar position of jeopardy. Even although it may be highly inconvenient for him - as indeed for anyone standing trial on a criminal charge - to have to wait until the termination of a trial before going on review, being placed in such a position does not, in my view, subject

applicant to a grave injustice, nor does it result in irreparable prejudice to him.'

[21] For these reasons, I am not convinced that this application, on its merits, should be entertained until the matter is concluded in the Regional Court. It follows that the Application should be struck from the roll,

[22] In the result, the following order is made:

1. The Application is struck from the roii with no order as to costs.

2. The Applicant is ordered to appear in the Regional magistrate's Court Atlantis at 09h00 on Tuesday 25 September 2012 to resume the proceedings in order to conclude this matter. Failing which, the magistrate would be entitled to hold a contempt of court enquiry into his failure to appear in Court, in terms : of the provisions of the Criminal Procedure Act 51 of1977.'

JUDGE

A LE GRANGE

STELZNER,

AJ

I agree

ACTING

JUDGE RGL STELZNER