CRI/T/150/04

IN THE HIGH COURT OF LESOTHO

In the matter between:

ZWELAKHE MDA 1st APPLICANT

LIMAKATSO RALITLHARE 2nd APPLICANT

versus

THE DIRECTOR OF PUBLIC

PROSECUTIONS 1st RESPONDENT

THE ATTORNEY GENERAL 2nd RESPONDENT

Held at Maseru on 14th15th, 16th and 17th March 2005 CORAM: Honourable Mr Acting Justice SV Mtambanengwe Delivered on: 18 April 2005

JUDGMENT:

2

This is an application on Notice of Motion, initially on an urgent basis and in terms of Rule 12(1) of the Constitutional Litigation Rules, seeking "an Order in the following terms:

1. Dispensing with the forms and service provided for in the rules;

2. That the presiding judge give directions for the conduct of this matter;

3. The declaratory that the decision of the Respondent to indict 1st and 2nd Applicants before the High Court in CRI/T/150/04 is irregular and/or unconstitutional;

4. The declaratory that the criminal proceeding relating to the charge in CRI/150/04 can only be commenced before the Magistrate's Court of competent jurisdiction; and

5. That Applicants be granted further or alternative relief."

6. The deponent of the founding affidavit in this matter is first applicant, and that of the opposing affidavit is first respondent. The second respondent is cited 'in his nominal capacity as the representative of the Government of Lesotho in Legal Proceedings'.

3

When the hearing started, heads of argument had been filed of record for both sides. On the merits, paragraph 2.1 of applicant's heads reads:

"2.1 This Court will not be called upon to pronounce itself on any constitutional issue. This is because the matter is capable of resolution on a non-constitutional ground. In any event, therefore, it would be inappropriate to invoke a constitutional remedy."

This meant that an order in terms of prayer (c) was no longer sought by the applicants. The parties were also in agreement that the application must be heard by the trial Judge before whom the trial was due to proceed. Section 160 of the Criminal Procedure and Evidence Act 1981 (the Act) provides that –

"(1) When the accused intends to apply to have a charge quashed under Section 159, or to except or to plead any of the pleas mentioned in Section 162, except the plea of guilty or not guilty, he shall give reasonable notice (regard being had to the circumstances of each particular case) –

4

1. to the Director of Public Prosecutions or his representative if the trial is before the High Court.

2. ......

3. ...........

Stating the grounds upon which he seeks to have the charge quashed or upon which he bases his exception or plea.

(2) The notice referred to in subsection (1) may be waived by the Director of Public Prosecutions and the Court may on good cause shown, dispense with or adjourn the trial to enable the notice to be given."

One of the relevant pleas mentioned in section 162, of which notice is required to be given by the accused is sub-section (2) (e), namely 'that the Court has no jurisdiction to try him for the offence.'

Section 146 of the Act provides as follows:

"(1) If on the trial of a person charged with an offence before any Court it appears that he is not properly triable before that Court, he is not by reason thereof entitled to be acquitted, but the Court may, at the request of the accused, direct that he be tried before

5

some proper Court and may remand him for trial accordingly."

2. If the accused does not make the request referred to under sub-section (1) the trial shall proceed and the verdict and judgment shall have the same effect as if the Court had originally had jurisdiction to try the accused.

3. This section shall not affect the right of the accused to plead to the jurisdiction."

There was no amendment made or applied for to the affidavits originally filed as a consequence of the abandonment by or on behalf of the applicants of the constitutional issue. Hence the founding affidavit and the opposing affidavit, inter mixed the constitutional and the other bases for the order sought. The founding affidavit, for example, still said, in paragraph 6 thereof;

"6.1 I verily aver that Respondent's decision to indict us at the High Court is fatally flawed and unsustainable for the following reasons:-

6

1. The order of this Honourable Court was in essence to render our criminal case interlocutory before the Magistrate's Court, so that it cannot now be commenced before the High Court.

2. The matter is still pending before the Magistrate's Court.

3. Respondent has not applied his mind properly to the question of the proper forum to bring the charges inasmuch as there is no rational basis for bringing the matter in the High Court when it was first heard in the Magistrate's Court.

6.2 I verily state further that Respondent's decision is in contravention, of the provisions of the Constitution in the following respects:

1. We are being deprived of the benefit enjoyed by other citizens in similar circumstances, of evoking the High Court jurisdiction as an appellate forum in testing the correctness of the Magistrate's

7

Court as a Court of first instance. And this is done in violation of our freedom from discrimination and rights to equality before the law and equal protection of the law.

b) Concomitant with the serious prejudice aforesaid is the fact that we are now compelled to assemble a legal team to represent us in the High Court at much higher and unaffordable legal costs than in the Magistrate's Court.

c) We submit that there is no rational justification for our disparate treatment."

The apposing affidavit of first respondent on the other hand stated in paragraph 2 and

3 that:

-2-

"Because of the basis for this application and the manner in which it should in my respectful view be dealt with, which I set out below, I do not propose dealing with the matters

8

raised in the founding affidavit seriatim. However, to the extent that what is contained therein is in conflict with what is set out hereunder, such is denied.

-3-

First, the intention of the applicants is clearly that this application be heard by a civil Judge and not trial Judge before whom the trial is due to proceed on 14th February 2005. To this extent this application is irregular and fatally flawed. Whether or not this application involves a constitutional right of the applicants, the correct forum is the trial court."

It is now necessary to sketch the background to this application before proceeding further. It is the following, first and second applicants and three others appeared before the Magistrate's Court charged with the offence of defeating or obstructing or attempting to defeat or obstruct the course of justice. The crown called two witnesses in support of its case. At the close of the crown's case an applications for a discharge in terms of section 175(3) of the Criminal Procedure and Evidence Act 1981 was granted. The Director of Public Prosecutions appealed against the Magistrate's Court's ruling to the High Court. The High Court upheld the

9

appeal and ordered that the applicants be tried de novo. An appeal by the applicants to the Court of Appeal was unsuccessful. The first respondent thereafter indicted the applicants on the same charge before the High Court.

In the original heads filed on behalf of first respondent a statement is made in the conclusion thereof that the decision of first respondent is therefore not reviewable and that the applicants have no right to choose the Court before which they are to be heard. The applicants original arguments appeared to be to the contrary.

To clarify matters I requested that further written submissions be filed by both parties before they addressed the Court orally. The request, subsequently put in writing, was intended to focus counsel's attention on what prima facie appeared to the court as the relevant provisions of the Act, but more particularly, for counsel to spell out more clearly, if a review of the first respondent's decision was being sought, the legal principles they sought to rely on.

10

As a result of my request first respondent first filed a supplementary apposing affidavit, which the applicants replied to, before both parties filed their further written submissions.

In this supplementary opposing affidavit first respondent states:

2.

"I have already made an opposing affidavit in this application which affidavit was intended to meeting the case being made out by the applicants on the papers. However, the applicants have subsequently, in the Heads of Argument filed at the end of the day on 14 February 2005, made out a further case, namely, that the criminal case is improperly before the High Court as the accused have not been committed for trial by a Magistrate (as required by Section 92 of the Criminal Procedure & Evidence Act, 1981) and that I have not invoked the provisions of Section 144 of that Act to have the accused summarily tried before the High Court.

3.

I am also informed, and verily believe it to be true, that the Honourable Presiding Judge hearing this matter, at the commencement of the hearing on 15 February requested

11

Counsel for the Crown to specifically address certain points, including whether the exercise of my discretion in indicting the accused before the High Court instead of the Magistrate's Court, was reviewable or not.

4.

In the circumstances set out above I beg leave to file this supplementary opposing affidavit, setting out my response to the new grounds relied upon by the accused and the questions raised by the Presiding Judge.

5.

I confirm that, when deciding to indict the accused before the High Court, I relied upon the powers provided to me in Section 99 of the Constitution and in Section 5 of the Act as read with Section 144. I considered that it is in the public interest for the accused to be tried in the High Court and for one or more of the following reasons:

5.1 The Court of appeal emphasized that it was in the interest of justice that the accused be tried by another court, not the Court which tried them in the first

12

instance. In my view the interests of justice are the same as the public interest.

5.2 In the light of the fact that a judge of the High Court has already held that the Crown, in the previous hearing, had established a prima facie case against the accused, a Magistrate hearing the case might well be influenced thereby. This would not be the case if a Judge were hearing the case. In addition, the 1st Accused is well known to most Magistrates which might also cause the Magistrate hearing the matter to be influenced. The present Presiding Judge has no such connection with the 1st Accused.

5.3 There would be no material prejudice to the accused by being indicted in the High Court. Indeed it would lead to a more speedy resolution of the case, which would be in the interests of all concerned, and also in the public interest. Furthermore, the proceedings in the Magistrate's Court are not recorded and this makes it more difficult to prepare a record for appeal. The proceedings in the High Court are recorded.

13

6.

As for the question as whether the accused had a legitimate expectation of being heard by me before I decided to indict them in the High Court, I deny that such expectation could or did arise in the circumstance of this case."

It is necessary also to quote in full the most salient parts of the "answering" affidavit of first applicant. I do so because the contents of these papers foreshadow the arguments that were addressed to the Court when the proceedings continued two days after the adjournment accessioned by my request, and for the further reason that these papers serve to complete the background to this application:

4, AD PARAGRAPH 2 THEREOF:

a) It is admitted that the deponent has already filed an affidavit dealing with the factual averments in the founding affidavit as he was entitled to.

14

b) It is denied that any further case has been made out in the Heads of Argument. The founding affidavit clearly puts into issue the decision of the deponent to remove the case from the Magistrate's Court to this Court. In that event, the deponent was entitled to have referred the alleged public interest that he now, ipso factu invokes.

c) Deponent has clearly referred to the legal instruments upon which he based his decision in the original affidavit. Nothing prevented him from referring to Section 144 on public interest. He did not refer to it because it never exercised his mind.

d) The only situation in which deponent would be entitled to deal with the issue that we were not committed, is if he was alleging that in fact we were committed and that our legal teams Heads of Argument fly in the face of that true position.

e) Your Lordship will see that instead of dealing with the issue of committal, which is proffered as one of the reasons for the deponent to file this affidavit, deponent

15

has strangely dedicated his affidavit to the public interest issue, which arises under Section 144 and not the committal issue arising under Section 92(1) of the CP&EAct.

7. As already stated, he should have stated the alleged public interest in the original affidavit.

AD PARAGRAPH 3 THEREOF:

a) His Lordship raised issues of concern to his Court and that was not to give deponent the opportunity to respond to legal contentions by filing an affidavit on facts dealing with the matters after the event.

b) It is significant that, but for His Lordship's concerns, both teams were ready to proceed with oral arguments.

6. AD PARAGRAPH 4 THEREOF:

16

The issues by His Lordship were purely legal issues, not an invitation to place any further facts before him leading to unnecessary delays.

AD PARAGRAPH 5 THEREOF:

a) As already stated, the reference to Section 144, is an afterthought. One cannot imagine why it was not mentioned in the original affidavit if it exercised the deponent's mind for it appears it would have been the main basis for his decision.

b) As I shall show hereinunder, the reasons advanced do not qualify as public interest.

8. AD PARAGRAPH 5.1 THEREOF:

1. Contents herein are not accurate. Your Lordship will see that in the extract filed of record, the Court of Appeal, specifically refers to "a different Judicial Officer". This could have been a reference to a different Judicial

17

Officer/ Magistrate other than Mrs Nthunya who was found by the High Court to have made credibility findings.

2. Indeed the High Court in its order was debating whether the same magistrate would proceed with the matter. It decided to remit it, but not for continuation before Mrs Nthunya instead for trial denovo. But it was remitted as will clearly appear in the High Court order.

AD PARAGRAPH 5.2 THEREOF:

a) The Magistrate who will preside over this matter holds the same legal qualifications as deponent. They are trained lawyers and know their job very well. At any rate, there is always the High Court if they go wrong, just as there is the Court of Appeal if the High Court errs. Besides, all sides will be represented before the Magistrate. I fail however, to see how this point is in the public interest.

2. Your Lordship will see indeed that what deponent is here saying, is that he has no confidence in the Magistrate's Court. He says this after I was discharged by a

18

Magistrate. Quite clearly, his lack of confidence in the Magistrate's Court must be viewed in that light. He is not entitled to exhibit this contempt for the lawfully established Courts of law.

c) The allegation that the Magistrate will be influenced by the knowledge of myself, clearly reinforces the view that deponent lacks confidence in them.

d) As regards His Lordship, we feel it is unfortunate that his position should be dragged into this debate by the deponent. What needs to be emphasized is that the defence is not aware of the reasons why the permanent judges of the High Court could not have dealt with this matter in the deponent's view. But, it is safe to infer that he thinks the same way about them as the Magistrates. We would respectfully bring it to your Lordship's attention that none of the judges of this Court declined to hear this matter.

3. For the edification of this Court, the matter was placed before Guni J. in the last session and she was indisposed

19

and unable to attend. The defence team had assembled at Court and the prosecution team never showed up.

f) There was never any indication that the permanent judges were not inclined to hear what would have been the preliminary objection now raised before Your Lordship. This objection was intimated to the deponent as early as last year.

10. AD PARAGRAPH 5.3 THEREOF:

a) Contents herein are denied and deponent put to the proof thereof. To accept the deponent's averments, one would necessarily have to accept that the Magistrate's Court is not a competent and independent Court of law.

b) By law, the Magistrate's Court is a Court of record. I fail to understand what deponent is saying when he alleges that proceedings in the Magistrate's Court are not recorded. Deponent is amazing. Just how will he explain the fact that an appeal was noted from the decision of the Magistrate who discharged me until the

20

Court of Appeal without the record. (If Magistrate's Court proceedings are not recorded).

11.

But what is important above all is that the deponent exercised the decision to select a forum when the matter was tried in the Magistrate's Court initially. He cannot re-visit that, worst of all denigrating the Court's reputation in the process. The matter is now in the hands of the Court which have directed its future course.

AD PARAGRAPH 6 THEREOF:

Surely I was entitled to know why deponent was rudely changing a form when all circumstances clearly warranted the matter to proceed in the Magistrate's Court. Lack of transparency on his part smacks of mala fides

On the papers before me 1 am satisfied that this application basically calls for a review of the decision of the first respondent. It is therefore necessary to now refer to various constitutional and statutory provisions that have a bearing on this application.

21

The powers of the Director of Public Prosecutions (the DPP) are spelt out in the Constitution of Lesotho as follows:

"Director of Public Prosecutions

99. (L) There shall be a Director of Public Prosecutions whose office shall be an office in the public service.

(2) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do —

(a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b) to take over and continue any such criminal proceedings that have been instituted or

22

undertaken by any other person or authority; and

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(3) The powers of the Director of Public Prosecutions under subsection (2) may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions.

(4) The powers conferred on the Director of Public Prosecutions by subsections (2)(b) and (c) shall be vested in him to the exclusion of any other person or authority except the Attorney-General: Provided.......

(5) .............................................................."

23

Section 98(2) of the Constitution provides that it shall be the duty of the Attorney-General to:

"(a) exercise ultimate authority over the Director of Public Prosecutions.",

and section 77(2) vests the power solely in the Director of Public Prosecutions to institute any prosecution in the High Court of any person:

"....who sits or votes in either House of Parliament knowing or having reasonable grounds for knowing that he is not entitled to do so ...."

The Act also spells out the powers of the DPP in section 5 as follows:

"A. Director of Public Prosecutions

5. The Director of Public Prosecutions may in any case in which he considers desirable so to do -

(a) institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b) take over and continue any criminal proceedings which have been instituted or undertaken by any other

24

person or authority including any proceedings instituted before the commencement of this Act; or (c) discontinue in writing at any stage before judgment is delivered any criminal proceedings instituted or undertaken by himself or other person or authority."

Section 2 of the Criminal Procedure and Evidence (Amendment) (No 2) Act 1984 deleted both subsections (3) and (5) of section 5 of the Act and substituted the following for subsection (3)-

"(3) In the exercise of the powers vested in him by section 5, the Director of Public Prosecutions shall be subject to the direction and control of the Attorney-General. Provided that:

1. where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with leave of the court; and

2. nothing in this subsection precludes a court from exercising jurisdiction in relation to any question whether the Director of Public Prosecutions has exercised his functions

25

under this subsection in accordance with law", (my emphasis)

The Constitution provides in Part 2 thereof for the establishment of the High Court and its powers are spelt out in section 119(i) as follows:

"119(i) There shall be a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decision or proceedings of any subordinate or inferior court, court-martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law and such jurisdiction and powers as may be conferred on it by this Constitution or by or under any other law". (again my emphasis)

It is crystal clear, in my opinion based on the passages I have underlined in the two provisions quoted above, that any decision of the Director of Public Prosecutions in the exercise of his functions is reviewable.

26

In the concluding paragraph of respondent's heads of argument Mr Molyneaux, on behalf of the DPP says:

"what the applicants are contending for is the right to choose the Court before which they are to be heard. They have no such right."

The questions whether or not the applicants have or do not have such a right need not be decided in this application since the applicants have abandoned any reliance on any Constitutional issue. However, what I understand the applicants to be doing is to exercise a statutory right to raise the question whether in the circumstances of their case, they are before the proper Court. That right is conferred first and foremost, it would appear to me, by section 162(2)(e) of the Act which says an accused person may plead:

"(e) that the Court has no jurisdiction to try him for the offence;"

Next one goes to section 146 which provides: (To repeat the provisions thereof)

"C. General for all Courts.

146. (1) If on the trial of a person charged with an offence before any court it appears that he is not properly

27

triable before that court, he is not by reason thereof entitled to be acquitted, but the court may, at the request of the accused, direct that he be tried before some proper court and may remand him for trial accordingly.

(2) If the accused does not make the request referred to under sub-section (1) the trial shall proceed and the verdict and judgment shall have the same effect in all respects as if the court had originally had jurisdiction to try the accused.

(3) This section shall not affect the right of the accused to plead to the jurisdiction."

The mechanism for doing what section 146 prescribes is provided in section 160, which reads:

"160. (1) When the accused intends to apply to have a charge quashed under section 159, or to except or to plead any of the pleas mentioned in section 162, except the plea of guilty or not guilty, he shall give reasonable notice (regard being had to the circumstances of each particular case) –

28

1. to the Director of Public Prosecutions or his representative if the trial if before the High Court; or

2. to the public prosecutor if the trial is before a subordinate court; or

3. when the prosecution is private, to the private prosecutor, stating the grounds upon which he seeks to have the charge quashed or upon which he bases his exception or plea."

The decision of first respondent which is challenged in these proceedings was made as a consequence of the upholding of respondent's appeal to the High Court against the Magistrate's favourable ruling on the applicants' application in terms of section 175(3) of the Act. In upholding the appeal the High Court ordered as follows:

"The appeal is allowed therefore and the acquittals of both the list and second respondents are set aside. At this stage, the learned trial magistrate having made her findings as to credibility, I consider that it would not be in the interests of justice to remit the case to the court a quo for continuation

29

of trial. Instead I order that both respondents be tried de novo."

The Court of Appeal ruled as follows:

1. The appeal noted against the judgment of the High Court as per the notice of appeal dated 19th August 2004 is struck from the roll. The order upholding the appeal from the Magistrate's Court was not an order that could be appealed to this Court.

2. The application for leave to appeal dated 12th of October 2004 is refused. The order of the High Court that the trial should proceed de novo before a different judicial officer was proper, and in the circumstances of this case, including the considerations raised in the application for leave to appeal, required by the interest of justice."

I turn now to consider the submissions of counsel. Mr Sello who led the team of lawyers representing the applicants argued, in essence, that the DPP in indicting the applicants for trial before the High Court, has "completely misread the provisions of the Criminal Procedure and Evidence Act and acted under the wrong section to

30

wit section 5" In making this submission Mr Sello referred to Union Government v Union of Steel Corporation (SA) Ltd 1928 AD 220 where at 234 Stratford J.A. said:

"If a discretion is conferred by statute upon an individual and he fails to appreciate the nature of that discretion through misreading the Act which confers it, he cannot and does not properly exercise that discretion."

Counsel argued that the DPP should have acted under section 92(1) of the Act. This section provides that:

"92. (1) Except as provided for by section 144 no person shall be tried in the High Court for any offence unless he has been previously committed for trial by a magistrate, whether or not the committal was on the direction of the Director of Public Prosecutions under the powers conferred by section 90 (1) (c), for or in respect of the offence charged in the indictment, but in any case in which the Director of Public Prosecutions has declined to prosecute, the High Court may, upon the application of any private prosecutor referred to in section 12 and 13, direct any magistrate to take a preparatory examination against the person accused."

31

The submissions I am dealing with now were made in writing before further affidavits were filed in the matter. (I will turn to those affidavits herein below). Mr Sello's argument was that only the Magistrate has the powers to commit a person for trial and that power is not vested in the DPP; he says:

"It is for this reasons that in terms of section 90 (1)(e) where the Magistrate has discharged an accused person but on consideration of the evidence, the Director of Public Prosecutions considers that there is enough evidence the latter remits the matter to the Magistrate with the direction that accused be committed for trial. The Director of Public Prosecutions does not do so himself."

The crux of Mr Sello's argument was that the Director in his answering affidavit has not said he invoked the provisions of section 144 of the Act. The section reads:

"144. (1) Whenever—

1. in the opinion of the Director of Public Prosecutions any danger of interference with or intimidation of witnesses exists; or

32

2. the Director of Public Prosecutions considers it to be in the interest of the safety of the State or in the public interest,

he may direct that any person accused of having committed any offence be tried summarily in the High Court without a preparatory examination having been instituted against him."

This provision is very important. It authorizes a departure from the provisions in the Act extensively dealing with preparatory examinations - a sine qua non to all prosecutions even in the High Court. The prerequisites for exercising this power are spelt out. The detailed provision of the Act as to preparatory examinations underline the importance of the fact that the Crown must establish a prima fade case before dragging a person to court for trial. Even in jurisdictions where the procedure has by and large fallen into disuse, procedural mechanisms are in place to meet that principle. There can be no gainsaying the fact that this principle and the assurance that a person is tried before a proper tribunal are an important element of a fair trial as guaranteed by the Constitution.

33

Part V11 of the Act contains several sections starting from section 60 and ending at section 98, but section 92 caps it all by stressing that, except as provided in section 144, "no person shall be indicted in the High Court .... unless he has been previously committed for trial by magistrate..."

In the circumstances of this case section 144, I think, aught to be read in conjunction with section 8 of the High Court Act which reads as follows:

"8. (1) The High Court shall be a court of appeal from all subordinate courts in Lesotho with full power –

1. to reverse and vary all judgments, decisions and orders, civil and criminal, of any of the subordinate courts;

2. to order a new trial of any cause heard or decided in any of the subordinate courts and to direct, if necessary, that such new trial shall be heard in the High Court." (my emphasis)

But before considering the effect of these provisions in detail I must also refer to the submissions of counsel for the first respondent. In his first heads of argument Mr Molyneaux squarely

34

relies on section 5 of the Act as read with section 99 of the Constitution. After stating that the High Court has jurisdiction to hear a charge brought against the applicants, he goes on to say:

"4.1.4 Moreover, the Director of Public Prosecutions (First Respondent) is clothed with the discretion as to which Court before which an accused person is to be brought, In this regard, see section 5 of the Criminal Procedure and Evidence Act, 1981 and section 99 of the Constitution which reads as follows:

1. ...

2. The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do –

1. to institute and undertake criminal proceedings against any person before any Court (other than a Court-Martial) in respect of any offence alleged to have been committed by that person;

2. ...

3. ..."

4.1.5 The power accorded to the Director of Public Prosecutions as set out in section 99(2)(a) is also

35

not "... subject to the direction or control of any other person or authority"

Section 99(6) of the Constitution

4.1.6 It is accordingly submitted that the Constitution itself provides the First Respondent with the power to indict the Applicants in the High Court and affords the High Court jurisdiction to hear the case. Accordingly, the decision to indict in the High Court cannot be faulted on the grounds that it is not in accordance with powers of the High Court."

In his supplementary heads of argument he states: "The Crown contends that:

3.1 Sections 5 and 144 of the Criminal Procedure Act empower the Director of Public Prosecutions to have the accused tried summarily in the High Court without a Magistrate having committed him fro trial.

3.2 As to the conditions which must exist for the DPP to so direct, one of those is that the DPP considers it in the public interest to do so.

36

3.3 The DPP has stated that, when he indicted the accused in the High Court, he relied upon the powers afforded to him in section 5 of the Act. In the Supplementary Opposing Affidavit, he confirms that he acted in terms of section 5 as read with section 144.

Supplementary Opposing Affidavit, par 5, p. 26.

3.4 In the light of the decision by the DPP as well as what is set out in the judgment of the Court of Appeal in which that Court stressed how it was in the interest of justice for the matter to be heard de novo, it is clear that the provisions of section 144 do apply in this case, and that it was in the public interest for them to be charged in another Court, which the DPP decided should be the High Court."

Counsel still contends that the decision of the Director is not reviewable. He states, however that:

"... if the Crown is incorrect on this, it is respectfully submitted that a review of the discretion exercised by the DPP will show that the DPP has acted in terms of the law, especially section 144 ... for reasons set out in the Supplementary Opposing Affidavit he acted reasonably, and

37

there is no evidence that he acted mala fide or from ulterior motive or failed to apply his mind to the matter."

In further submissions on behalf of applicants, Mr Teele, assisting Senior Counsel, drew attention to a passage in Anisminic Ltd v The Foreign Compensation Commission and Another [1969] 1 ALL Er 208 (HL) where Lord Ried considered whether the court's jurisdiction was ousted by a provision that said:

"The determination by the Commission of any application made to them under this Act shall not be called into question in ay court of law."

In his consideration His Lordship went on to say at p 213H - 214B: "But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that the decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have minconstruced the provisions giving it power to act so that it failed to deal with

38

the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account ... If it is entitled to enter into the enquiry and does not do any of those things which I have mentioned in the course of the proceedings, than its decision is equally valid whether it is right or wrong subject only to the power of the court to correct an error of law." (See Lord Denning - The Discipline of Law pp 106 - 108) Mr Teele concluded that the DPP misconstrued the provisions "pursuant to which he has to exercise his powers". Mr Sello in his oral submissions put emphasis on the words "if necessary" which appears in section 8(l)(b) of the High Court Act, and argued that what the DPP purported to do in charging the applicants before the High Court, was an attempt to usurp the power of the High Court, meaning to say, as I understood him, that the High Court had already decided that the applicants would be tried in the magistrate's court by not directing that they be tried before the High Court, which it could have done if 'if necessary'.

39

As against these arguments, Mr Molyneaux argued that both the High Court and the Court of Appeal left it to the DPP to exercise his discretion as to the court before which the applicants should be tried, and that the DPP rightly decided in terms of sections 144 and 5 of the Act.

I proceed to examine these opposing contentions. It will be noted that in his original opposing affidavit the Director of Public Prosecutions does not say he relied on section 144 of the Act. He says at paragraph 5:

"Secondly, this application calls into question my powers as Director of Public Prosecutions as provided in Section 5 of the said Act. It is my submission that by indicting the two applicants as I did, I acted within such powers." (my underlining)

It is only in the supplementary opposing affidavit that the DPP purports to have relied on section 144 in addition to section 5 of the Act. It is trite law that in applications on notice of motion a party must make his case in his founding affidavit. The rule, it would seems to me, applies equally to the respondent in such applications, namely that the opposing affidavit is the foundation

40

of the defence case and it is there that a party must establish his defence. In this case the DPP has of course taken advantage of the questions I raised in the request for further submissions, to file the supplementary affidavit in order to advance the argument now based, in addition, on section 144 of the Act. No application for the Court to disallow the supplementary opposing affidavit was made by the applicants. Counsel for applicants confined themselves to attacking the claim that the DPP's decision was based on section 144, as an afterthought. First applicant infact does so in an affidavit in answer to the DPP's supplementary affidavit. I think it is proper, in these circumstances, to have regard to the supplementary opposing affidavit and of course the reply thereto.

The reason now advanced by respondent of deciding as he did in terms of section 144 is that it is in the public interest. Mr Molyneaux further argued that the "order of Culliuan AJ must be read in conjunction with the judgement of the Court of Appeal, that the trial should commence de novo before a different court". He goes on to say that there was no specific injunction that the matter be heard in the magistrate's court, so "there was no limitation of the first respondent's power, to decide in which 'different court' the case should be tried."

41

I pause briefly to say that the phrase used in the Court of Appeal's judgment is 'de novo before a different judicial officer'. While it may be so that the High Court did not limit his discretion, various provisions of the Act, and the High Court Act, make it clear that the DPP may not exercise his powers to indict persons for summary trial before the High Court in his absolute discretion. And as Baron, J.A. said in Commissioner of Police v Wilson 1981(4) SA 726 (ZAD) at 742 E:

"... the authorities are clear that in construing discretionary powers given to Ministers and other high ranking persons the Courts take into account that the legislature expects those powers to be exercised responsibly."

In the same vein, Cameron J, in Realty Homes (Pty) Ltd v Premier of The PWV Province 1995 CLD 785 (W), referred to the precept embodied' in Schreiner, J's judgment in Mustapha and Another v Receiver of Revenue, Lichtenburg 1958 (4) SA 434, as unassailable namely, 'that all official action is subject to scrutiny for lawful authorization'. In the context of this case I would add the phrase 'or on rational grounds'.

42

I have no doubt that Cullinan, A.J. considered the provisions of section 8(1) (b) of the High Court Act and found it not necessary to "to direct ... that such new trial shall be heard in the High 'Court" The Learned Acting Judge said, to repeat, at this stage, the learned trial magistrate having made her findings as to credibility, I consider that it would not be in the interest of justice to remit the case to the court a quo for continuation of trial'. Secondly at the hearing of the appeal, with both sections 144 of the Act and 8(l)(b) of the High Court in mind, it was open to the Director of Public Prosecutions at that stage to submit that it was in the public interest for the court to act in terms of section 8(l)(b) of the High Court Act if the DPP was so minded then. This consideration alone fortifies the submission by applicants' counsel that reliance on section 144 by the DPP was an after thought.

The main factors the DPP submits influenced his decision are as stated in his supplementary opposing affidavit, and I quote:

"I considered that it is in the public interest for the accused to be tried in the High Court and for one or more of the following reasons:

43

5.1 The Court of appeal emphasized that it was in the interest of justice that the accused be tried by another Court, not the court which tried them in the first instance. In my view the interests of justice are the same as the public interest.

5.2 In the light of the fact that a judge of the High Court has already held that the Crown, in the previous hearing, had established a prima facie case against the accused, a Magistrate hearing the case might well be influenced thereby. This would not be the case if a Judge were hearing the case. In addition, the 1st Accused is well know to most Magistrates which might also cause the Magistrate hearing the matter to be influenced. The present Presiding Judge has no such connection with the 1st accused.

5.3 There would be no material prejudice to the accused by being indicted in the High Court. Indeed it would lead to a more speedy resolution of the case, which would be in the interests of all concerned, and also in the public interest. Furthermore, the proceedings in the Magistrate's

44

Court are not recorded and this makes it more difficult to prepare a record for appeal. The proceedings in the High Court are recorded."

These reasons are sufficiently dealt with by first applicant in paragraph 9 and 10 of his affidavit filed in reply to first respondent's supplementary affidavit, which, I have already quoted above. Suffice it to repeat what Friedman AJA said in S v Somciza 1990(1) SA 361(AD) at p 366D:

"A magistrate is a trained judicial officer and he knows that he must decide every case that comes before him on the evidence adduced in that case. See R v T 1953 (2) SA 479(A) at 483."

I respectfully agree with that statement. That view was even more forcefully expressed in R v T, supra where Contlivres C.J said at 483 B - E:

"One cannot assume that there is a danger that trained judicial officers will neglect their duties in performing their judicial functions. One might as well contend, as pointed out by Mr. Lynn, for the Crown, that if the magistrate had

45

recused himself the case should not be tried by the assistant magistrate who may be averse to giving a decision contrary to that given by his chief in the previous case. In the case of a trained judicial officer the mere possibility of bias not based on a previous extra-judicial opinion in relation to the case he is going to try or on hostility or relationship to or intimate friendship with one of the parties or on an interest in the case does not disqualify him from trying the case. CF. Rex vMilne and Erleigh (6), 1951 (1) S.A. 1 at p. 11 (A.D.). Then it was contended that the magistrate's sense of fairness would revolt against acquitting the appellant after he had already convicted the Native woman. Here again one cannot assume that the magistrate would not in coming to a decision in the case against the appellant have regard only to the evidence led in that case and would not acquit the appellant if he thought that the evidence against him was insufficient." (my emphasis)

As to the plea that a summary trial in the High Court would lead to a more speedy resolution of the case in the interest of all concerned and also in the public interest, the answer is that a preparatory examination must have been held before the charge was preferred against the applicants in the court a quo; there is no

46

suggestion that the procedure of holding such an examination need to be repeated.

The reasons advanced by the DPP for his decision to indict the applicants before the High Court are not in my opinion, rational grounds for such a decision. Furthermore, I find that in advancing these two reasons in paragraph 5.2 and 5.3 of his supplementary opposing affidavit the DPP based his decision on matters which under section 144 he had no right to take into account. As to public interest outside paragraphs 5.2 and 5.3, I do not see any other ground on which the DPP considered it in the public interest or in the interest of justice that the applicants should be tried before the High Court rather than in the Magistrate's Court. As Lord Denning said in his book in the passage referred to above. The DPP acted on no evidence to enable him to exercise his discretion properly.

For the reasons I have addressed in the body of this judgment I do not find it necessary to deal with the question whether or not the applicants had any legitimate expectation that they would be tried de novo in the Magistrate's Court.

47

The applicants, unlike the DPP, did not ask specifically for an order as to costs should they succeed; nor did Counsel appearing on their behalf make any submission in writing or orally in this regard. The matter in as sense is a res nova, and in my opinion the DPP should not be penalized with any order of costs for resisting the application. Important principles of statutory interpretation were involved in the matter.

In the result the application succeeds. I accordingly make the following order:

1. That the criminal proceedings relating to the charge in CRI/T/150/04 shall only be commenced before the Magistrate's Court of competent jurisdiction.

2. That there will be no order as to costs. MTAMBANENGWE, AJ

48

For Applicants Mr. Sello K.C. Mr. Teele Mr. Sooknanan Mr. Phafane

For Respondents Mr. Molyneaux

The judgment of the Honourable Mr. Acting Justice S V Mtambanengwe read and handed down to the parties by the Honourable the Chief Justice.

ML. LEHOHLA

CHIEF JUSTICE

18-04-2005