S v Khathutshelo and Another (38/2018, R D2/2016) [2018] ZALMPTHC 2; 2019 (1) SACR 480 (LT) (26 June 2018)

S v Khathutshelo and Another (38/2018, R D2/2016) [2018] ZALMPTHC 2; 2019 (1) SACR 480 (LT) (26 June 2018)

The High Court held that the special review application was not properly brought, as it was not initiated by the magistrate and lacked a substantive application supported by affidavit as required by the Uniform Rules. Even if the procedure had been correct, the court found no basis to interfere with the magistrate's exercise of discretion in refusing a trial-within-a-trial, as section 252A(7) of the Criminal Procedure Act allows the presiding officer to determine the procedure for admissibility of trap evidence. The court reaffirmed the principle that intervention in uncompleted proceedings is reserved for rare cases of grave injustice, which was not demonstrated here. The accused's...

Citation
[2018] ZALMPTHC 2
Parties
Applicant: The State; Respondent: Mphande Khathutshelo; Respondent: Hlongwani Morimisi Morris
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
26 June 2018
Case Number
38/2018, R D2/2016
Procedural Posture
Review Application / Special Review of Interlocutory Ruling
Outcome
Special review application dismissed; matter to proceed before the same magistrate.
Judges
Mangena, NF Kgomo
Legal Topics
Entrapment, Admissibility of Evidence, Trial Within a Trial, Judicial Discretion, Review of Interlocutory Rulings
Criminal Law Civil Procedure Entrapment Admissibility of Evidence Trial Within a Trial Judicial Discretion Review of Interlocutory Rulings

Case Brief

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Parties

The State

Applicant

Mphande Khathutshelo

Respondent

Hlongwani Morimisi Morris

Respondent

Procedural Posture

Review Application / Special Review of Interlocutory Ruling

Legal Issues

  1. 1 Whether the accused were entitled to a trial-within-a-trial to determine the admissibility of trap evidence under section 252A of the Criminal Procedure Act.
  2. 2 Whether the magistrate's refusal to hold a trial-within-a-trial constituted a reviewable irregularity justifying intervention before the conclusion of the trial.
  3. 3 Whether the special review application was properly brought before the High Court.

Ratio Decidendi

The High Court held that the special review application was not properly brought, as it was not initiated by the magistrate and lacked a substantive application supported by affidavit as required by the Uniform Rules. Even if the procedure had been correct, the court found no basis to interfere with the magistrate's exercise of discretion in refusing a trial-within-a-trial, as section 252A(7) of the Criminal Procedure Act allows the presiding officer to determine the procedure for admissibility of trap evidence. The court reaffirmed the principle that intervention in uncompleted proceedings is reserved for rare cases of grave injustice, which was not demonstrated here. The accused's...

Court Disposition

Special review application dismissed; matter to proceed before the same magistrate.

Orders

  • The special review application is dismissed.
  • The accused must appear before Magistrate Kellerman for the matter to proceed in accordance with her ruling.