Sidu v S (A03/23) [2023] ZAMPMBHC 58 (8 November 2023)

IN THE HIGH COURT OF

SOUTH AFRICA

MPUMALANGA DIVISION MBOMBELA [MAIN SEAT]

CASE NUMBER: A03/23

In the matter between:

XOLANI TEDDY

SIDU

APPELLANT

And

THE

STATE

RESPONDENT

JUDGMENT

SHAI AJ

Introduction

[1] The appellant was convicted and sentenced to 36 months imprisonment on a charge of Assault with intent to do grievous bodily harm.

[2] The appellant appeals against both conviction and sentence.

[3] This court decided that oral arguments be dispensed with as the matter can be decided on the filed documents, including the parties’ heads of argument.

Proceedings in the court a quo

[4] The charge was formulated as follows:

“The accused is guilty of the crime of assault with intent to do grievous bodily harm in that on the 29th of July 2018 at or near Wonderfontein Road, Carolina in the District of Chief Albert Luthuli the accused did unlawfully and intentionally

assault Sibonelo Gumbi by stabbing him several times on his body with the intent of causing him grievous bodily harm”

[5] The appellant was legally represented and he raised a special plea to the effect that the court had no jurisdiction to hear the matter, based on the geographic location of the scene of crime, which according to the appellant’s legal representative, was not within its jurisdiction. The prosecutor was not sure of his/her stance and wanted to rely on the information from the police. The court a quo on the other hand bemoaned why this plea was not raised earlier and indicated that the matter had been long on the roll and could not be delayed any further, it under the circumstances ended up proceeding with the matter until it was finalised.

Jurisdiction

[6] The plea of lack of jurisdiction, though it does not entitle the appellant to a conviction or an acquittal, would have had the effect of ending the proceedings in the court a quo, if upheld. The appellant, in addition to the other grounds of appeal he relied upon, persisted in this court with the contention that the court a quo lacked jurisdiction to hear the matter. It therefore becomes imperative for this court to look first at the special plea and thereafter, if needs be, proceed to look at the merits

[7] The appellant pleaded that the court a quo lacked jurisdiction. This plea is governed by the provisions of section 106(1)(f) of the Criminal Procedure Act 51 of 1977 (“the CPA”). It is generally accepted that the prosecution bears the onus to establish jurisdiction once it is placed in issue (See generally R v Radebe 1945 AD 590 at 603 as well as S v December 1995 (1) SACR 438 (A) at 439j). See also S v Mahala & another 1994 (1) SACR 510 (A) at 511e. The standard of proof is proof beyond reasonable doubt (S v Buys en andere 1994 (1) SACR 539 (0) at 541a-b). Any factual dispute can be determined by way of viva voce evidence (see generally Mdluli v Minister of Justice 1978 (1) SA 893 (A) at 905 B-C). Expert evidence might be necessary where specific boundaries happen to be in dispute. [See S v Munuma & others 2018 (2) NR 521 (HC)]. Where a plea in terms of section 106(1)(f) has been entered together with a plea of not guilty on the merits, the jurisdictional issue should obviously be heard and disposed of first. (See generally S v Wellem 1993 (2) SACR 18(E) at 20d. See further generally S v Dersley 1997 (2) SACR 253 (C).[1]

[8] Section 108 provides as follows: “If an accused pleads a plea other than a plea of guilty, he shall …be deemed to demand that the issues raised by the plea be tried”. This means that evidence should be led to establish whether the court has the requisite jurisdiction or not.

[9] The provisions of section 108 are peremptory. This means that the State is enjoined to lead evidence to establish whether the court has jurisdiction or not.

Analysis

[10] It is imperative to have regard to what transpired during the proceedings before the court a quo. When this plea was raised by the appellant, the court a quo only listened to the arguments from the two legal representatives who only provided scanty information to it. The prosecutor was alive to the fact that evidence should be led to establish jurisdiction[2]. Whilst the prosecution was still weighing its options as to what to do, the court a quo, despite a concern raised by the State[3], interrupted and raised its concerns regarding the delay of the matter and thereafter, summarily ruled that the trial should proceed. In its reasoning, it indicated that it ruled as such “based on the provision of section 342A.”

[11] I pause here to indicate that it is not clear whether this was a reference to a section in the CPA or not, and what the meaning of this was. Be as it may, this issue should not detain us any further because, what clearly comes out of the ruling is that the court a quo, by allowing the matter to proceed as such without hearing evidence on the special plea and making a ruling on it, assumed jurisdiction on the matter mero motu, which is a procedure at odds with the provision of section 108 and the established principles relating to section 106(1) as espoused

above.

[12] The court a quo was apparently aware that it was committing an injustice as it stated after its order that: “The matter can be appealed or

reviewed”[4].

[13] It is evident from the record that the court a quo was not sure of whether the court had jurisdiction or not, hence its failure to make a ruling on this issue. The court a quo erred in this regard. It was, so it seems, in a haste to finalise the matter.

[14] The provisions of section 342A, if the section referred to is that of the CPA, even if they were relevant, could be no excuse or justification for failure to rule on the issue of jurisdiction.

[15] Section 108 requires that evidence be placed before the court to establish the issue of jurisdiction or lack thereof. By failing to allow the parties to lead evidence, the court a quo denied itself the benefit of evidence from either party. The court a quo therefore had no basis upon which it could decide whether or not the court had jurisdiction. This was another material misdirection on the part of the court a quo as the court a quo was enjoined to make an informed ruling on the special plea before proceeding on merits.

[16] It is trite that if a court has no jurisdiction, a judgment entered therein does not adjudicate anything. A court does not have the power to extend or assume jurisdiction over matters beyond the scope of the authority granted to it by its creators.

[17] Section 35(3) of the Constitution[5] guarantees the accused’s rights to a fair trial.

[18] The conduct of the proceedings as aforesaid in relation to the issue of jurisdiction is a procedural irregularity which rendered the trial unfair.

[19] In the premise, the proceedings are vitiated. There is, therefore, no need to deal with the merits of the matter.

[20] Consequently, the following order is made:

20.1 The appeal is upheld.

20.2 The conviction and sentence are set aside.

20.3 The matter is remitted to the Magistrate’s Court, Carolina, for proceedings to start de novo before another Magistrate other than the Magistrate who presided over the matter.

SHAI AJ

I agree

KGOELE J

DATE: 08 November 2023 APPEARANCES: Reserved on papers – 28 July 2023 Appellant – Mr H Phaswane Phaswana H Attorneys Phaswanah@yahoo.com For STATE – Adv TD Mahasha Director of Public Prosecutions Tmahasha@npa.gov.za

Delivered by sending to the parties through their email on: 8 November 2023.

[1] Du Toit : Commentary on the Criminal Procedure Act: RS 65, 2020 Chapter 15-p38

[2] Page 33, lines 3-6, of the paginated record bundle.

[3] Page 36, lines 18-22

[4] Page 33, line 22, of the paginated bundle.

[5] Constitution of the Republic of South Africa, Act 108 of 1996