trang nỗ hũ j88

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　　IN

　　THE HIGH COURT OF SOUTH AFRICA,

　　MPUMALANGA

　　DIVISION, MIDDELBURG

　　(LOCAL

　　SEAT)

　　 

　　Case

　　No: 156/21

　　 

　　REPORTABLE:

　　NO

　　OF

　　INTEREST TO OTHER JUDGES: /NO

　　REVISED:

　　YES

　　DATE

　　04/11/2021

　　 

　　In

　　the matter between:

　　 

　　THE

　　STATE

　　 

　　versus

　　 

　　JEREMIAH

　　SELAELO MUSUIA

　　 

　　JUDGMENT

　　(SPECIAL REVIEW)

　　 

　　VUKEYA

　　J et BRAUCKMANN AJ

　　 

　　[1]         

　　At the insistence of the head of office of the Delmas Magistrate's

　　Court

　　a trial Magistrate (“the Magistrate”) sent

　　one of his judgments in a criminal case for special review

　　 

　　[2]         

　　I will briefly refer to the merits of the matter, but am of the view

　　that

　　it is not material.

　　 

　　[3]         

　　In the criminal case the Accused was arraigned of assault common.

　　From

　　the transcribed record it appears that the Complainant provided

　　evidence that she had been assaulted by the Accused with an open

　　hand

　　and a fist, whereafter she fell. She then fell on a paraffin

　　container and injured her elbow.

　　 

　　[4]         

　　According to the Complainant she sustained an injury to her shoulder

　　and

　　went to hospital. However, no evidence was led regarding this

　　injury at the trial. The medical J88 form (“the J88”)

　　was handed in and accepted as evidence, but the form does not reflect

　　an injury to the elbow or shoulder of the complainant.

　　The J88

　　indicates that the injuries sustained were not life-threatening.

　　After this evidence was presented, the State closed its

　　case.

　　 

　　[5]         

　　At that stage the Magistrate invoked the provisions of Section 174 of

　　the Criminal Procedure Act, Act 51 of 1977 (“the Act”)

　　and discharged the Accused on the premise that the State did not

　　prove assault common as the Magistrate was of the view

　　that the State

　　proved assault with the intent to cause grievous bodily harm.

　　As it was not a competent verdict as provided for in Section 267 of

　　the Act, the Accused was, according to him, entitled to a

　　discharge.

　　 

　　[6]         

　　The Chief Magistrate requested reasons for his judgment from the

　　Trial

　　Magistrate. He was of the view that the Magistrate erred and

　　that he should have found the Accused guilty of assault common.

　　According

　　to him the J88 form specifying the injury was handed into

　　evidence without the form being read into the record. According to

　　the

　　J88 the doctor noted that:

　　 

　　“She fell on her (left) side

　　and sustained painful muscle on her (left) side”. The

　　doctor, after having examined the Complainant, found “no

　　obvious injuries”. The Magistrate, in his memo to

　　the Trial Court Magistrate, stated the following: “Bearing

　　in mind that for a Court to convict the Accused of assault to cause

　　grievous bodily harm, there are two questions the Court

　　must ask

　　itself: Firstly whether the Accused did indeed assault

　　the Complainant and secondly and probably most importantly,

　　whether the Accused had the intention to cause

　　the Complainant grievous bodily harm. I further draw your attention

　　to the fact that if the evidence does not support

　　the charge of assault with the intention to cause grievous

　　bodily harm, the Court may still convict the Accused on

　　the lesser competent charge of assault (common).

　　 

　　To me the evidence led and

　　presented and the J88 does not in any event support a conviction on

　　assault with the intent to cause

　　grievous bodily harm, even if the

　　Accused in casu was charged with that offence. I therefore am of the

　　considered and respectful

　　view that the proceedings were not in

　　accordance with justice.”

　　 

　　[7]         

　　The Head of Office then submits to the Trial Magistrate that the

　　matter

　　should be sent on special review to be set aside and that the

　　proceedings be ordered to start de novo before another

　　Magistrate.

　　 

　　[8]         

　　The Trial Magistrate, having received this letter from the Head of

　　Court,

　　replied in a memo that is not dated:

　　 

　　“After a long discussion we

　　had about the case, I therefore realized that I might have erred or

　　misdirected myself on the interpretation

　　and application of the law

　　in the above case. Therefore the proceedings were not in accordance

　　with justice. I also request that the matter be sent on

　　special review.”

　　 

　　[9]         

　　After receipt of the record and the request by the Head of Office, I

　　sent

　　the matter to the Director: Public Prosecutions (“the

　　DPP”) for their comments.

　　 

　　[10]      

　　Adv. M. Mpolweni and Senior State Advocate L.M. Erasmus of the DPP

　　provided me with their

　　view, which I found very helpful. I am

　　indebted to them, and share their view.

　　 

　　[11]      

　　Section 302 to 306 of the Act governs review procedures in criminal

　　matters. To the contrary,

　　Section 22 of the Superior Courts Act, Act

　　10 of of 2013 (“the SCA”), deals with

　　reviews of judgments of the Magistrate's Courts. Section 22 of the

　　SCA only applies when Section 302 to 209 of the

　　Act does not apply.

　　 

　　[12]      

　　A review brought in terms of the Act is either automatic in terms of

　　section 302 after

　　sentencing, or in terms of Section 304A of the Act

　　by the Presiding Magistrate before sentencing, when he or she is of

　　the view

　　that the proceedings in respect of which he or she brought a

　　conviction are not in accordance with justice or doubts whether the

　　proceedings were in accordance with justice.

　　 

　　[13]      

　　A review brought in terms of Section 22 of the Superior Courts Act

　　must fall within the

　　ambit of Section 22(1) of that Act. These

　　reviews are normally brought in terms of Rule 53 of the Uniform Rules

　　of the High Court

　　(“the rules”) and cannot simply

　　be referred to a Judge in chambers like a review in terms of the Act.

　　 

　　[14]      

　　The grounds upon which the proceedings in any Magistrate's Court may

　　be brought under review

　　before a Court of a Division of the high

　　Court are:

　　 

　　[14.1]   Absence of

　　jurisdiction on the part of the Court;

　　 

　　[14.2]   Interest in the

　　cause, bias, malice or corruption on the part of the Presiding

　　Officer;

　　 

　　[14.3]   Gross

　　irregularities in the proceedings; and

　　 

　　[14.4]   The admission of

　　inadmissible or incompetent evidence or the rejection of admissible

　　or competent evidence.

　　 

　　[15]      

　　From the note from the Head of Office, alternatively the Trial

　　Magistrate, it seems that

　　this review is brought in terms of Section

　　22(1) of the SCA and not in terms of the Act.

　　 

　　[16]      

　　In order to launch a review in terms of Section 22 of the Superior

　　Courts Act, the application

　　must first be launched by way of a Notice

　　of Motion and Affidavit in terms of Rule 53 of the Rules.

　　 

　　[17]      

　　In casu, I only received a letter from the Head of Office

　　together with a memo, undated, from the trial Magistrate.

　　 

　　[18]      

　　Even if no application was necessary, it is still to be decided

　　whether this matter falls

　　within the ambit of Section 22 of the Super

　　Courts Act. It is clear that according to the Head of the Office and

　　the Magistrate,

　　they are of the view that the Trial Magistrate “might

　　have erred or misdirected” himself “on the

　　interpretation and application of the law”.

　　 

　　[19]      

　　The misdirection on the interpretation of the law does not resort

　　under Section 22(1) of

　　the Superior Courts Act. The Court clearly had

　　jurisdiction to entertain the matter and no evidence of interest,

　　bias, malice or

　　corruption on the part of the Presiding Officer was

　　alleged or appeared from the letters or record. There were also no

　　procedural

　　irregularities in the conduct of the proceedings before

　　the Trial Judge. All the evidence admitted by the Magistrate was

　　admissible

　　and was done so regularly.

　　 

　　[20]      

　　What remains is to decide whether the Head of Office and Magistrate

　　is left with any remedy

　　in terms of any of the relevant sections in

　　the Acts referred to. The answer is no. In the event that a Presiding

　　Officer misdirects

　　him in the application of the law, the remedy lies

　　in an appeal against the decision.

　　 

　　[21]      

　　If the State felt aggrieved by the Magistrate’s application of

　　Section 174 in circumstances

　　where the law does not allow it, the

　　State could have applied for leave to appeal.

　　 

　　[22]      

　　In consequence, the referral for review is not to be entertained.

　　Should the DPP wish they

　　may pursue an application for leave to

　　appeal against the Magistrate’s order.

　　 

　　DATED

　　AT MIDDELBURG, MPUMALANGA ON THIS 4TH DAY OF NOVEMBER

　　2021.

　　 

　　 

　　HF

　　BRAUCKMANN

　　ACTING

　　JUDGE OF THE HIGH COURT

　　 

　　I

　　agree;

　　 

　　L

　　VUKEYA

　　JUDGE

　　OF THE HIGH COURT