IN THE HIGH COURT OF LESOTHO
In the matter between:-
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
HER WORSHI MRS TAOLE 1ST RESPONDENT
LEBAJOA LEPHATSOE 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
Delivered by the Honourable Madam Justice N. Majara
on the 13th September, 2010
Application for review of court a quo’s ruling before proceedings therein are finalized – whether this Court should entertain same – general rule is proceedings cannot be dealt with piecemeal unless it can be shown that to do so would be just in the circumstances – circumstances herein justify departure from general rule - application dismissed for lack of evidence in support of the payers sought.
This is an application for review in which the applicant seeks this Court to grant him an order in the following terms:-
The application is opposed. On the 6th October 2008 Counsel representing the applicant and the 2nd respondent appeared before me and having heard them I ordered the 1st respondent to dispatch the record of proceedings in CR/528/07 to the Registrar of the High Court within 14 days. After some considerable delay the record was finally dispatched and the matter was eventually set down and argued on the 9th August 2010.
In terms of the founding affidavit deposed to by the applicant, during the proceedings and while PW 4 was giving his testimony, Counsel for the 2nd respondent raised an objection to his handing in documentary evidence, namely ID ‘A’ being a print-out from Econet on the grounds that ID ‘B’ enabled PW 4 access to ID ‘A’ and that ID ‘B’ has not named the witness (PW 4) as prescribed by the law which demands that the court order should indicate the name of the police officer in terms of Section 46 (1) (c) of the Criminal Procedure and Evidence Act, 1981 (CP & E) and that as such, the document was fraudulently obtained.
Further that their response to the objection was that Section 46 deals exclusively with search warrants and has no application to the case in question. Further that search warrants envisaged by the section are normally issued against anyone whom the police want to search as a result of being a suspect in the commission of an offence and that Econet was not a suspect and/or party to these proceedings.
The applicant added that even though the record of proceedings reveals that they conceded that the court order in question fell short of mentioning PW 4’s name, he strongly denies that he did make this concession in the course of his submissions and that on the contrary, it was their case that ID ‘B’ did in fact bear the name of PW 4 (Inspector Selia-lia).
Further that assuming that the defence Counsel’s objection was correct i.e. that ID ‘B’ fell short of mentioning PW 4’s name, Section 47 of the CP& E does entitle/empower PW 4 to search and seize the document in issue without a warrant by virtue of his rank (Inspector). The deponent averred further that after hearing their argument the 1st respondent delivered a verbal ruling the net effect of which she sustained the objection raised by the defence Counsel.
It is the case of the applicant that the 1st respondent’s decision is bad in law because it amounts to reviewing the decision that was earlier granted by the very same Court and that it has potentially serious consequences of discontinuing the case for the Crown in that part of the Crown evidence is not admitted. Further that the ruling prejudices the Crown in its presentation if the evidence of the witness concerned is not admitted hence their seeking the intervention of this Court in terms of Section 78 of the Subordinate Court Order (Amendment) Act of 1988.
In his answering affidavit the 2nd respondent made the assertion that the record of proceedings will show that his legal representative raised the objection on the ground that it is Section 46 of the CP & E that has to be invoked to assess documents for purposes of criminal proceedings and that no other procedure is envisaged by the Act. He added that in his evidence PW 4 did not purport to access the document in terms of Section 46 (2) but by way of obtaining a warrant.
In addition that his Counsel had argued in the court a quo that a proper and literal interpretation of the section is that any document or warrant which purports to seize information or documents has to comply strictly with the provisions of Section 46 (1) (c) and that the order that was used by PW 4 was not in compliance with the section for want of stipulation of the name(s) of the police officer(s), more specifically that of PW 4. Further that what the law provides in terms of the section is that the complainant has to approach a judicial officer who has to be satisfied that the document to be seized is within the jurisdiction of the Court not with a suspect.
With regard to the contents of the record, the 2nd respondent asserted that it is the document that truly reflects what went on in Court and that he denies the averments of the applicant to the extend that they contradict what is recorded by the Presiding Officer.
In her submissions on behalf of the applicant Ms Mofilikoane stated that they approached this Court in terms of Section 78 of the Subordinate Court Order and that the section does not specify what type of decision can be challenged. It was her further submission that the applicant has correctly approached this Court at this stage before the proceedings are finalized because his dissatisfaction with the 1st respondent’s ruling is based on the ground that she had no powers to entertain the application from the defence Counsel namely, that the order ID ‘A’ be declared a nullity because the court order i.e. ID “B” had been made by another magistrate so that the 1st respondent was in essence functus officio.
She added that the best that the 1st respondent could have done was to have sent the order to the High Court for correction. Further that it doesn’t matter how the order had been obtained, the 1st respondent had no power whatsoever to correct another Magistrate’s Order.
Ms Mofilikoanealso made the submission that the 1st respondent’s ruling that the order obtained by PW 4 was in terms of Section 46 of the CP & E be corrected and set aside because what he obtained from the magistrate was a court order and not a search warrant because the former is issued by a judicial officer to authorize police to conduct a search upon any suspected person, premises, other place, vehicle or receptacle and to seize such thing if found and take it before Court to be dealt with according to the law.
Counsel for the applicant added that PW 4 stated in his evidence that Econet has from time to time informed the police that information of print-outs required by police will only be released to them through court orders in terms of the company’s policy and that it was on that basis that the Court order and not a search warrant was sought. She added that the section cannot be applicable because Econet is not a suspect in this case.
On behalf of the 2nd respondent, Ms Thabane made the submission that the applicant ought to have appealed the decision of the 1st respondent in terms of section 72 of the Subordinate Courts Order 1988 and not applied for review as he did because grounds for review have been laid down by the Court of Appeal and are, illegality, irrationality and impropriety and that in the present case the applicant has not alleged and/or shown any of these grounds.
She added that a case should normally run its course unless there is a dire miscarriage of justice that would make it impossible for the trial court to make a decision. Further that even if the 1st respondent ruled that she would not admit ID “A”, four (4) witnesses have already testified on the side of the Crown and there is still further evidence to be called that can assist the Court to come to a decision and that this present application is therefore premature. She added that the interests of justice dictate that evidence should be handed in properly before the Court and that the applicant herein is seeking this Court to overturn a decision that disallows the improper handing thereof. It was Ms Thabane’s further submission that the evidence in question was obtained fraudulently.
Counsel for the 2nd respondent submitted that what was sought before Magistrate Ntlhakana was indeed a search warrant in terms of Section 46 of the CP & E, and the section has clear conditions outlining the person, the reason why and the time when it should be executed. She added that the document was a search warrant and not a court order and that there is no schedule in the Act from which to determine what a document obtained in terms of this section should look like.
Further that contrary to the section, Mr. Ntlhakana’ search warrant did not name the police officer or alternatively the one who executed it was not the person stated therein so that it was not executed in terms of the law which in turn resulted in a miscarriage of justice. Lastly, it was Ms Thabane’s submission that the said provision should be given a literal interpretation because it contains a Constitutional right and that to give it any other interpretation would result in an absurdity.
I now proceed to deal with the issues raised and find it convenient and logical to deal first with the question whether under the circumstances of this case the applicant should have approached this Court at this stage of the proceedings to seek a review of the 1st respondent’s ruling.
It is trite that under normal circumstances proceedings have to run their course to finality before a party that is not satisfied therewith can seek review or lodge an appeal against a decision therein. The case in point in this respect is that of McIntyre en andere v Pietersen NO en ander (1997) 4 All SA 401 (T) quoted to this Court. Although it is reported in the Afrikaans language, it has been summarized in English.
In terms of the summary, when dealing with a similar issue, the Court stated the general rule as being that proceedings in lower courts should not be taken on review or appeal piecemeal unless the Court is of the opinion that in the particular circumstances of the case it is just for the decision in question to be considered on review. The same reasoning was adopted by my learned sister Hlajoane J in the case of Director of Public Prosecutions v Moliehi Nthunya and 26 Others CRI/APN/122/2004 (unreported).
I have shown that in terms of Ms Mofilikoane’s submission, it is just for this Court to review the 1st respondent’s ruling because it disabled the prosecution in the Court a quo to hand in the print-out from Econet on which they depend for purposes of identification of the alleged perpetrator. As the one who alleges, the applicant strongly feels the said evidence is crucial for the case of the Crown and that if they have to wait for the proceedings to be finalized before they could take action justice would not be served. On the other hand, Ms Thabane submitted that the applicants have not shown any exceptional circumstances that would warrant a review at this stage.
In my opinion, the production of evidence that a party feels is necessary to support its case is quite imperative so that where such evidence is disallowed by the Court a quo the decision might have a bearing on the possible outcome of the case of the complaining party. While ordinarily I would not lightly interfere with proceedings that have not yet been finalized, I am of the view that for the reason that the 1st respondent’s decision has the effect of disallowing the said evidence I find that it is just for me to entertain this application at this stage. This is because in any criminal case, the question of the identity of the alleged perpetrator is integral which I believe to be the case in the present matter.
For the reason that the above two cited cases and others to which I have been referred have unequivocally stated that a decision of the magistrate can be taken on review at this stage, I do not find it necessary to consider the question whether or not the applicant in casu should have come by way of appeal or review. The principle speaks for itself namely, review proceedings are in order under justifiable circumstances.
I turn now to deal with the provisions ofSection 78 of the Subordinate Courts Order 1988 on which the applicant seeks to rely in seeking review as aforesaid. It reads as follows:-
“Whenever a decision is given by a Subordinate Court in a criminal case on a matter of law and the Director of Public Prosecutions is dissatisfied with such decision, he may seek the ruling thereon of the High Court and the High Court may set down the matter to be argued before it.”
The section is not specific and is silent whether or not such a decision should be a final one. In the light of the stated authorities, I am of the view that it is reasonable to conclude that it makes reference to any decision as long as the applicant can ably show that review at that stage passes the test of justice and fairness as stated in the case of McIntyre en andere (Supra). That is why in my view, this section was included in the Subordinate Courts Order despite the existence of Section 72 thereof which deals specifically with appeals against conviction and sentence thus suggesting finality of proceedings in the lower Court.
While the decision in the case of Mohlakoana Mabea & Another v The Magistrate of the 1st Class for Butha Buthe & Another CIV/APN/367/9; 1/CRI/A/8191 (unreported) seems to suggest that the High Court will not entertain an appeal or review of an interlocutory order made by a Magistrate, in quoting with approval Gregorowski J in McComb v A.R.M. Johannesburg A-G (1917) TPD 717 the learned Cullinan CJ (as he then was) however went on to state that there may be a special case where the magistrate has erred in such a way that there is no difficulty in the way of the Court of review putting him right. In my opinion, this case echoes the same general rule together with its exception. I need say no more in this regard. For these reasons, I find that this application does deserve consideration by this Court.
I now proceed to deal with the question whether or not the document that precipitated this application was issued in terms of Section 46 or 47 of the CP & E. Both sections deal with the issue of search, with the former dealing with search with warrant and the latter with search without warrant. Both sections also deal with seizure of things that may be used as evidence in a criminal trial. In terms of section 46, a judicial officer first has to issue a warrant before a search can be carried out whereas in terms of section 47, police officers of or above the rank of warrant officer are empowered to conduct a search without first having to seek a warrant from a judicial officer.
Section 46(1) provides as follows:-
“If it appears to a judicial officer on complaint made on oath that there are reasonable grounds for suspecting that there is upon any person or upon or at any premises or other place or upon or in any vehicle or receptacle within his jurisdiction –
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence;
he may issue a warrant directing a policeman named therein or all policemen to search any such person, premises, other place, vehicle or receptacle, and to size any such thing if found, and to take it before a magistrate to be dealt with according to law.” (emphasis mine)
As I have stated section 47 contains a similar provision safe that it allows same to be executed by senior officers of warrant officer and above without first having to seek a warrant from a judicial officer.
On the facts before this Court it is not in dispute that before he could approach Econet, PW 4 sought from the Magistrate Court a document authorising him to go to Econet to get the printout now in issue. The applicant argues that this document is a court order hence the submission that it was not obtained in terms of section 46 whereas the 2nd respondent terms it a search warrant.
In my opinion, the only provisions that deal with search and/or seizure of documents or other things for purposes of bringing them as evidence before the Court in the Criminal Procedure and Evidence Act are sections 46 and 47 respectively. The Act embodies everything that has to do with procedure and evidence in all criminal cases.
It is also my view that a proper construction of section 46 is that for anything to be seized from any person, place, vehicle or receptacle, such a person does not necessarily have to be a suspect. As paragraph (b) thereof reads, anything as to which there are reasonable grounds to believing it will afford evidence as to the commission of any offence such a thing may be seized to be dealt with according to law as long as it within the jurisdiction of the Court.
In other words, nowhere does the section make reference to the word suspect in the context suggested by the applicant but for it to state that if it appears that there are reasonable grounds for suspecting that there is upon any person or any premises or place anything then such thing may be taken before the Court. The term ‘suspecting’ in this regard is not used in the sense that whoever is believed to have evidence is necessarily a suspect in the commission of an offence but rather that it is suspected he may be in possession of a thing that will afford evidence. Such a person can be as a newly-born baby, but the section will apply.
I accordingly reject as incorrect the submission that search warrants as envisaged by the section are issued against suspects only and no other. On the contrary, it allows police to search anyone, anything at any place as long as they reasonably believe they will find a thing that will afford evidence as to the commission of any offence.
With respect to how a search warrant should appear indeed I accept Ms Thabane’s submission that the Act does not have a schedule to which reference could be made so that the question of what it properly is should be found in the wording of the provision. Consequently, I find that the document referred to as ID “B” is indeed a search warrant and if so, it can only have been obtained in terms of Section 46 (1) (b).
The alternative argument that was made by Ms Mofilikoane’s was that for the reason that PW4 holds the rank above that of a warrant officer, the document in question was obtained in terms of section 47. In my view, since it is not disputed that a document (which I have since found to be a search warrant) was first sought from a judicial officer, to accept this line of argument would be tantamount to allowing the applicant’s case to shift from one post to the other which cannot be fair.
This is because the applicant states that PW 4 did approach the Court to obtain a document in terms of the law. He however avers that this was a court order and not a search warrant yet he also argues on his behalf that the order was obtained under section 47 which I have already shown also deals with search. Over and above that, the applicant avers that PW 4 did not need a search warrant to obtain the print out from Econet and yet again he submits that the document did mention PW 4’s name, the latter which is required under section 46. I find this submission flawed in that it oscillates between two contradictory statements namely, the document is not a search warrant on the one hand and on the other that it was sought in terms of the
Section 47 which also deals with search but without a warrant. I find it very difficult to reconcile the two.
At any rate, Section 47 is only enabling and does not make it irregular for senior officers to first obtain search warrants in terms of section 46 before they can conduct search and/or seizure hence the procedure was adopted in this case. As such, it does not make it irregular for such senior officers to first seek a warrant before a judicial officer. For these reasons, it is my finding that the applicant has not successfully made out his case in terms of prayer 2 in the notice of motion.
This is turn brings me to the next issue to wit, whether the 1st respondent’s ruling is irregular and amounts to reviewing the order earlier granted by another magistrate. In terms of the evidence before this court, after Counsel for the 2nd respondent raised the objection to the handing of ID “A”, being the print-out which was obtained in terms of ID “B”, the 1st respondent found in her favour and upheld the objection.
In terms of the applicant’s averments, the ruling was to this effect; ‘on the face of it there is no mention of Inspector Selia-lia’s name on the order’ and that it was upon this that she refused to admit ID “A”. This is my opinion leads me to deal with the next question, whether the said ruling amounts to a review of the order of the other magistrate?
The evidence before the Court reveals that the 1st respondent gave her ruling on the basis of the document that she was looking at at the material time and in my opinion, it cannot be correct that in uttering those words and agreeing with Ms Thabane was necessarily a review of the ‘order’. Instead, she made a factual observation upon which her ruling i.e. not to admit the evidence obtained on its basis namely, ID “A” flowedand that factor does not per se make her decision bad in law because of its potential consequences to the case of the Crown. That is not the yard stick. Instead the question to be asked is whether or not her ruling was right or wrong and I have already stated that on the basis on the evidence before me, I cannot find fault with it. She obviously made a decision based on what was before her.
I am also of the view that any judicial officer is entitled to make rulings during proceedings before him/her as long as they are based on the proper facts, law and evidence before the Court. That is in order for the proper conduct of any proceedings. The facts were placed before her. It is for this reason that I find that prayer 3 also has to fall away as well as prayer 5 as in my opinion the two are directly related as the one flows from the other because I obviously cannot direct the 1st respondent to accept ID “A” as part of the evidence for the reason that I have already found that her ruling in that respect was not incorrect.
Therefore the case of S v Lapping 1998 SA 331 to which Ms Mofilikoane referred me must be distinguished from the present one because the 1st respondent herein did not set aside any proceedings but only ruled that she cannot admit particular evidence because it was obtained as a result of a defective search warrant. She is not setting aside the warrant but is saying she is not admitting the evidence that flew from it which was in my view a further step, namely a consequence of the search warrant. That is why she may still admit the defective search warrant ID “B” as evidence even if she does not admit ID “A”, the print-out. While I do agree with the applicant’s counsel that it is a general principle that once a Court has pronounced a final judgment or order it has itself no authority to correct, alter or supplement it as it is then functus officio I find thatin casu, the 1st respondent has not in corrected, altered or set aside any judgment or order let alone a final one.
I might also mention that during arguments, much was made about the fact that at the time she raised the objection Ms Thabane said the document was fraudulently obtained. The dispute was with regard to which document she was referring to when she uttered the words. Per Ms Mofilikoane it was in reference to ID “B” the search warrant whereas Ms Thabane argued that she was referring to ID “A” the print-out and added that she has no problem with ID”B”. In my opinion, this issue is not really important in this Court’s determination of the correctness or otherwise of the 1st respondent’s ruling.
However, be that as it may I proceed to deal with it because it seemed to Ms Mofilikoane to have had a bearing on the 1st respondent’s ruling. Page 23 of the record of proceedings reflects the following i.e. (during the testimony of PW 4):-
Witness referred to ID “A”
Document was filed after receiving it for purposes of evidence and it has been in my custody ever since.
Ms Thabane objects:
ID “B” enabled PW 4 access to ID “A” section 46 (1)(c) CP &E
The Court Order has not named the name of the witness (PW 4) as prescribed by the law. The law demands that the Court Order indicate the name of the Police Officer(s). The document was obtained fraudulently.
This was followed by Mr. Thetsane’s response to the effect that the section deals with warrants to be secured and Econent is not the accused or suspect in the proceedings and after both had made their respective submissions the Court gave its ruling, the bone of contention herein.
When read in context, it does appear that the document against which the objection was raised is ID“A” the print-out, because it is challenged on the basis that the search warrant, ID“B” does not mention who should carry out the search and that this was in contravention of section 46. But even assuming that as Ms Mofilikoane strongly contended, reference was being made to the search warrant Counsel for the 2nd respondent told this Court that they were not challenging its handing in but rather the print-out which in my opinion should put the matter to rest. However, the assertions of PW 4 in his supporting affidavit to the founding affidavit at paragraph 8, support my finding wherein he states:-
“During the course of the trial of the second respondent I was called by the Applicant herein as PW4. In the course of my adducing evidence I sought to have the document “IDA” exhibited before court as forming part of the evidence. The defence objected to the handing in of the document on the grounds set out in the affidavit of applicant herein.”
The applicant had averred as follows in this respect at paragraph 12 of the founding affidavit:-
“It was at this stage that Counsel for the 2nd Respondent raised an objection to the handing in of ID ‘A” premised on the following;
“(a)” ID “B” (court order) enabled PW 4 access to ID “A”.
(b) The court order has not named the witness (PW4) as prescribed by the law. The law demands that the court order indicate the name of the Police officer (S)….”
From the above, clearly the document in contestation is ID “A”.
I now proceed to deal with prayer 4 to wit, that this Court should direct that the Magistrate’s record of proceedings is riddled with serious omissions in as much as some crucial aspects of the Crown’s submissions are not embodied in the record. In support of this prayer, the applicant deposed as follows at paragraph 15 of his founding affidavit:-
“Even though the record of proceedings reveals that we conceded that the court order in question fell short of mentioning PW4”s name, I strongly deny that I did make this concession in the course of my submissions. If anything, it was our argument and conviction based on the contents of ID “B” (Court Order) that it did in fact bear the name of PW 4 (Inspector Selia-lia).”
Unfortunately, the Court was not referred to the part of the record in this regard, however, perusal thereof i.e. in those parts wherein I believe the discontent lies namely, the last two paragraphs at page 3, reads as follows albeit some words are faint at the end:-
“PW4 came before the Court to secure an Order to seize “IDA” which order falls short of mentioning PW4’s name, whether it does mention PW4’s or not but an Order has been secured and wor… still the Order in question bears PW4’s name.
The person who applied for the Court Order personally proceeded to Econet to seize “IDA”.
In response thereof, the 2nd respondent averred, ‘the record is the document that reveals what went on in Court, as such I deny contents hereof to the extend they contradict what is recorded by the Presiding Officer.’
There is clearly a dispute between the applicant and the 2nd respondent with respect to what the record reveals. It is an established principle of law that where a dispute of fact exists in application proceedings where the case has to be decided on the papers, the position enunciated in the case of Plascon-Evans Paints v Van Riebeeck 1984 (3) SA 623 at 627 (D) should apply namely, to accept the correctness of the facts deposed to on behalf of the respondent together with the admitted facts in the applicant’s affidavits.
My reading of the record reveals that the 1st respondent recorded inter alia the following words as having emanated from the applicant, ‘still the Order in question bears PW4’s name’ which words do not in my view support the applicant’s contention that they reflect a concession on their part. On the contrary, the recorded words show that he contended that the order does bear PW 4’s name which is the same one he is making before this Court.
However, it should be remembered that Magistrates Courts are courts of records. This is a statutory provision in terms of Section 6 of the Subordinate Courts Order. The Court takes judicial notice of the fact that unlike in the superior courts, where proceedings are recorded by means of recordings machines, those in the subordinate courts are ordinarily recorded by hand by presiding officers word for word. This means that where there is a dispute with regard to what transpired during proceedings, all parties refer to the record of the Court as the official one reflecting the true nature of the proceedings. I accordingly find that prayer 4 is untenable and has not been supported by evidence much as it is also stated in vague and general terms and it therefore cannot stand.
For all the foregoing reasons, I find that the applicant has not successfully made out his case for the order sought in the notice of motion and I dismiss this application with costs.
For the applicant : Ms L. Mofilikoane
For the 2nd respondent : Ms N. Thabane
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