Seloana and Others v Director of Public Prosecutions and Others (4019/2020) [2021] ZAFSHC 176 (24 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: 4019/2020

In the matter between:

SECHABA SELOANA

1st Applicant

MMUSO SELOANA

2nd Applicant

ABRAHAM ITUMELENG POPA

3rd Applicant

And

DIRECTOR OF PUBLIC PROSECUTIONS

1st Respondent

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 2nd Respondent

HONOURABLE MAGISTRATE Mr CHOENE

3rd Respondent

WELKOM MAGISTRATES’ COURT

CORAM: MBHELE, J et DANISO, J

JUDGMENT BY: DANISO, J

HEARD ON: 31 MAY 2021

DELIVERED ON: 24 AUGUST 2021

[1] This is an application for the review and setting aside of the decision of the third respondent, a district magistrate, in terms of which the third respondent transferred the applicants’ case to the high court at the request of the prosecutor.

[2] The application is opposed by the first and the second respondents (the respondents). The third respondent does not oppose the application and will abide the decision of the court.

[3] The applicants together with their 7 co-accused were arrested on 08 and 09 November 2018 respectively. On 12 November 2018 they appeared in the Welkom district court charged with 7 offences including kidnapping, extortion, 2 counts of theft, money laundering, illegal possession and transporting of gold bars. The case was postponed several times for the purposes of bail applications and further investigations. Ultimately, on 26 April 2019 the prosecutor informed the third respondent that the case was ready to be transferred to the high court. The third respondent transferred the case consequent to making the following order:

“Case transferred to the High Court sitting at Virginia court on 10 June 2019.

Accused 1, 2, 3,4,5,6,8 and 9 on bail and accused 7 and 10 on warning. All

warned for 8:30am.”

[4] It is common cause that the district court does not have jurisdiction to try the applicants’ case. Section 75 of the Criminal Procedure Act 51 of 1977 (“The CPA”) reads:

“(1) When an accused is to be tried in a court in respect of an offence, he shall, subject to the provisions of sections 119, 122A and 123, be tried at a summary trial in-

(a) a court which has jurisdiction and in which he appeared for the first time in respect of such offence in accordance with any method referred to in section 38;

(b) a court which has jurisdiction and to which he was referred to under

subsection (2); or

(c) any other court which has jurisdiction and which has been designated by

the Attorney-General or any person authorised thereto by the Attorney-General, whether in general or in any particular case, for the purpose of such summary trial.

(2) (a) If an accused appears in a court which does not have jurisdiction to try the case, the accused shall at the request of the prosecutor be referred to a court having jurisdiction.

(b) If an accused appears in a magistrate’s court and the prosecutor informs the court that he or she is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court but not of the jurisdiction of a regional court, the court shall if so requested by the prosecutor refer the accused to the regional court for summary trial without the accused having to plead to the relevant charge.

(3) The court before whom an accused appears for the purposes of a bail application shall, at the conclusion of the bail proceedings or at any stage thereafter, but before the accused has pleaded, refer such accused to a court designated by the prosecutor for purposes of trial.”

[5] It is the applicants’ case that the decision taken by the third respondent is marred by irregularities and also infringes their rights to a fair trial. The decision must accordingly be reviewed and set aside with an order that the applicants’ criminal case is seized by the Welkom regional court for the following reasons: the third respondent failed to give reasons for his decision. The applicants argue that by failing to give reasons for his decision, the third respondent deprived the applicants their constitutional right to understand how the decision was arrived at, to enable them

to decide whether the decision involved warrants a finding of fact or an error of law which is worth challenging. The ineluctable

inference, in their view, is that there is no justification on the part of the third respondent for the impugned decision.

[6] It is also the applicants’ case that the third respondent neglected his duties as a presiding officer by failing to appreciate that the decision to transfer lies within his domain and by making a decision which adversely affected the applicants’ rights without holding an enquiry to afford them an opportunity to make submissions or object to the prosecutor’s request.

[7] It was argued by Mr Omar for the applicants that defending a case in the high court is a greater financial burden to bear as opposed to the regional court. A magistrate’s decision in the trial within a trial may be reviewed without the need to first complete the proceedings as the high court has inherent jurisdiction to intervene in incomplete proceedings whereas a high court judge’s decision cannot be reviewed. A special entry may be made however that could result in substantial costs before the alleged irregularity is considered by the appeal court and to this end, the decision

infringes the applicants’ rights to a fair trial.

[8] The applicants submit that by overlooking the regional court which has sufficient jurisdiction to try the applicant’s case he disregarded the requirements to be met for the transfer of a case to another court to be valid as envisaged by section 75 (2) of the CPA and S v Khalema and 5 similar cases 2008 (1) SACR 165 (C) para 20 and also Sithole and Others v Director of Public Prosecutions and Another case number 6146/2017, Free State Division at para 11, delivered on 27 September 2018.

[9] The respondents countered that the transfer of the applicants’ case was done in terms of section 75 (1) read with sections 75 (2) (a) and 75 (3) of the CPA.

[10] It is the respondents’ contention that Section 75 (1) (c) permits the prosecution as the dominus litis to decide on a court of first instance, the forum for the trial and the timing of the transfer of a case if necessary. A magistrate in the district court cannot transfer a matter out of the district court to a higher court except on the decision and request of a prosecutor. In this matter, on 25 April 2019 acting in terms of section 75 (1) (c) the prosecution through the acting deputy director of the public prosecutions Free State, invoked its powers in terms of section 75 (3) and informed the third respondent in writing of its intention to arraign the applicants in the high court. The transfer is accordingly valid.

[11] The respondents submit that Sithole is distinguishable to the facts of this matter. In Sithole the regional magistrate transferred a case to the high court yet the transfer was not centred on lack of jurisdiction by the regional court.

[12] Mr Manye for the respondents argued that the applicants have no basis in law to choose a court in which they may be tried, this application is merely an attempt to usurp the powers of the respondents by dictating in which court they must be tried. The application ought to be dismissed with costs.

[13] I do not agree with the applicants’ contentions. The provisions of the Rule 53 (1) (b) of the Uniform Rules of Court are amenable. A magistrate may provide reasons if he so desires. There is also no provision in section 75 (2) where an enquiry by a magistrate can be inferred.

[14] The applicants’ reliance on Sithole, Kgalema and Section 75(2) is misconstrued. The authorities gainsay the applicants’ case. As already alluded to above at paragraph [4] section 75 (2) permits a magistrate presiding in a court which has no jurisdiction to try a case to transfer that case to a court which has sufficient jurisdiction when requested to do so by the prosecutor. See also Khalema at paragraphs 22 to 25.

[15] As correctly pointed out by counsel for the respondents, the facts of this matter are indeed dissimilar to that in Sithole. In that matter the case was transferred by a regional magistrate to the high court despite the fact that the regional court had

sufficient jurisdiction to hear the case and it is in that regard that the court found that the jurisdictional requirements set out in section 75 (2) were lacking consequently the transfer was invalid.

[16] It is axiomatic that in terms of section 35 of the Constitution of the Republic of South Africa, Act 108 of 1996 legal representation is a prerequisite for a fair trial. The applicants’ contention that defending the case in the high court would be costly thereby infringing on their rights to adequate legal representation is meritless. There are options available to an accused who cannot afford the costs of legal representation namely: to apply for Legal Aid or Pro Bono legal services.

[17] Taking into consideration the facts of this case, I find that the applicants have failed to make out a case for the review and setting aside of the third respondent’s decision. There is no reason why the costs should not follow the result.

[18] In the circumstances, the following order is made:

1. The application to review and set aside the order of the third respondent dated the 26th April 2019 is dismissed.

2. The costs to be paid by the applicants jointly and severally one paying the other to be absolved.

NS DANISO, J

I concur

NM MBHELE, J

APPEARANCES:

Counsel on behalf of Applicant:

Adv. A.B Omar

Instructed by:

Zehir Omar Attorneys

C/O Maree & Partners

BLOEMFONTEIN

Counsel on behalf of Respondents: Adv. T.L. Manye

Instructed by:

State Attorney