Lonwabo v National Director of Public Prosecutions and Another (3086/2019) [2019] ZAECGHC 121 (28 November 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. 3086/2019

In the matter between:

PHILLIP LONWABO Applicant

and

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent

REGIONAL COURT MAGISTRATE, ZWELITSHA

Second Respondent

JUDGMENT

Bloem J.

1. The applicant is in custody awaiting the recommencement of criminal

proceedings against him. The first respondent is the National Director of Public Prosecutions and the second respondent is an acting regional court magistrate at Zwelitsha who presided over criminal proceedings in which the applicant was an accused. On 31 October 2019 the applicant launched an urgent application for the following relief:

“1. That the applicant be granted leave to bring this application as one of urgency upon truncated time periods and any non-compliance with rules occasioned thereby be condoned.

2. That regional court case no. RCZ 228/2016 is hereby struck off the roll.

3. That the First Respondent provide reasons for their non-compliance with the court order made by this Honourable Court on 12 December

2018.

4. That the Applicant be released from custody with immediate effect.

5. That the First Respondent be ordered to pay the costs of this application.

6. Further and/or alternative relief.”

2. The factual background of the application is that the applicant was arrested during October 2015 and appeared with 8 other accused in the regional court at Zwelitsha. They were charged with robbery with aggravating circumstances, murder, 18 counts of fraud and the unlawful possession of a firearm and ammunition. After numerous postponements the trial commenced during February 2017 before acting regional court magistrate Kahla. Before the conclusion of the trial the President of the regional court for the Eastern Cape referred that and two other part-heard criminal matters presided over by Ms Kahla on special review. On 11 December 2018 Plasket J (as he then was), with whom Beshe J agreed, made the following order:

“1. The proceedings in the Regional Court, sitting in Zwelitsha, in case number RCZ228/16 are set aside.

2. The order issued by the acting regional magistrate in that case on 24 October 2018 is set aside.

3. The Registrar is requested to furnish a copy of this judgment to the President of the Regional Court for the Eastern Cape and the Magistrate’s Commission.”

3. The above order was made for two reasons. In the first place Plasket J found that the utterances that Ms Kahla had made during the proceedings to the effect that one of the accused and his family were involved in vilifying her and threatening her “would create in the mind of a reasonable person an apprehension that she could not be impartial” in respect of that accused and that a reasonable apprehension of bias had been established sufficient for the proceedings to be set aside. Ms Kahla found, without an evidential basis therefor, that she had been insulted and threatened by certain entities, persons and the media and made an order against the media, certain entities and various persons. Plasket J found in the second place that Ms Kahla had no power to make that order against those media houses, entities and persons who were not involved in the criminal case and who she did not give a hearing before making an order against them.

4. Mr Williams, attorney for the applicant, conceded at the hearing

that, although there is no order to that effect, it was clear that Plasket and Beshe JJ had in mind that, because the proceedings

presided over by Ms Kahla had been set aside, the proceedings must commence de novo before another regional court magistrate. It turned out at the hearing that the applicant’s real complaint was twofold. The first was that no effort had been made for the commencement of the hearing before another magistrate. The second was that, during all the proceedings after the delivery of the judgment on 11 December 2018, the state persisted with the use of the same charge sheet, with all the entries made by Ms Kahla, the submission being that the applicant and his co-accused would be prejudiced if the regional court magistrate who would preside over the trial (the new regional court magistrate) would have access to those entries.

5. Mr Sandi, counsel for the first respondent, submitted that the first respondent has no power to arrange for the allocation of the new regional court magistrate. Counsel submitted that it was for the President of the regional court to do so. I agree with Mr Sandi’s submission. A prosecutor has no power to allocate a criminal case to a magistrate or a judge. In the regional court that power belongs to the President of the regional court of the region in question and in the high court that power belongs to the Judge President of the division in question.[1]

6. The prosecutor’s power is set out in section 20 of the National Prosecuting Authority Act[2]. Section 20(1) thereof reads as follows:

“The power, as contemplated in section 179 (2) and all other relevant sections of the Constitution, to-

(a) institute and conduct criminal proceedings on behalf of the State;

(b) carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and

(c) discontinue criminal proceedings,

vests in the prosecuting authority and shall, for all purposes, be exercised on behalf of the Republic.”

7. It is apparent from the above provisions that a prosecutor does not have the power or duty to arrange for a matter to be allocated to or set down before a magistrate or judge. In this case it is for the President of the regional court within whose area of jurisdiction Zwelitsha falls to allocate the matter to the new regional court magistrate.

8. Regarding the second complaint, at the hearing Mr Sandi gave an undertaking on behalf of the first respondent that, once the new regional court magistrate has been allocated to preside over the criminal proceedings in question, a new charge sheet without the entries made by Ms Kahla would be handed to the new regional court magistrate. That would take care of the applicant’s second complaint.

9. In the circumstances, the applicant has not made out a case for the relief sought. At the hearing Mr Williams conceded that this court does not have the power to strike a case, which is before the regional court, off the roll of that court. Secondly, the first respondent was not ordered by Plasket and Beshe JJ to do anything regarding the applicant’s further prosecution. The applicant is accordingly not entitled to an order that the first respondent be directed to “provide reasons for their non-compliance with the court order made by this Honourable Court on 12 December 2018.” (sic) Thirdly, no case has been made out for the release of the applicant. The application should accordingly be dismissed.

10. This application was ill-conceived. It is unclear on what legal basis it was instituted. Prior to the submission of the applicant’s heads of argument Mr Williams was invited to state on what legal basis the applicant sought the relief set out in the notice of motion. No such legal basis was set out in the applicant’s heads of argument nor was any presented at the hearing. There is no reason why the applicant should not be ordered to pay the first respondent’s costs of the application.

11. In the result, the application is dismissed with costs, such costs to include the costs reserved on 19 November 2019.

________________________

G H BLOEM

Judge of the High Court

For the applicant: Mr B A Williams of B A Williams Attorneys, Grahamstown.

For the first respondent: Adv N J Sandi, instructed by the State Attorney, Port Elizabeth and J Mfundisi Attorneys, Grahamstown.

Date heard:

21 November 2019.

Date of delivery of the judgment:

28 November 2019.

[1] Travers v National Director of Public Prosecutions and others 2007 (3) SA 242 (TPD) at 250D-252H.

[2] National Prosecuting Authority Act, 1998 (Act No. 32 of 1998).