In the matter between:
THE LEARNED MAGISTRATE – MRS NTHUNYA 1st Respondent
CLERK OF COURT – MOKHOTLONG MAGISTRATE 2nd Respondent
DIRECTOR OF PUBLIC PROSECUTIONS 3rd Respondent
This is an application for review of proceedings by the Chief Magistrate North sitting at Mokhotlong Magistrate Court. The application is opposed. Applicant was criminally charged with theft of government money amounting to M186,597.00. It was said that the loss was occasioned from 2006 to 2010.
That criminal trial had commenced on the 21st September 2010 and the applicant was eventually found guilty as charged and sentenced to a term of fifteen (15) years imprisonment.
The prayers as appears in the notice of motion are the following:
1. That applicant be granted bail pending review of CR64/2010.
2. That the 2nd respondent be ordered to despatch the record of proceedings in the disciplinary enquiry of applicant.
3. That case/judgment by 1st respondent in CR64/2010 of Mokhotlong Magistrate handed down on the 28th of April 2011 be reviewed, corrected and set aside and matter should start de novo before a different Magistrate.
What this Court is being asked to determine is whether the grounds upon which the applicant relies are for review or appeal. The respondent on the other hand raised a point in limine indicating that applicant has taken an improper step by approaching the Court by way of review instead of an appeal.
I will briefly tabulate the points on which applicant relies on for applying for a review. It is the applicant’s case that;
1. It was wrong for the 1st respondent to have refused to recuse herself as the case against the applicant fell within her jurisdiction as the Chief Magistrate of the northern districts and that one of the crown witnesses was her colleague who was under her direct supervision.
2. That one of the witnesses at the trial P.W.2, from the Sub-Accountancy conceded she was not an auditor and as such she went beyond her scope of work.
3. P.W.3 as Senior Accountant agreed under cross-examination that applicant was audited in 2008 and her books found to be in order, so could not be correct to say she had shortage since 2006 to 2008.
4. P.W.5 as Detective Sergeant did not follow the proper procedure as he did not inform applicant of the purpose of their visit and never asked for her explanation.
5. P.W.7 acceded under cross examination that he never gave applicant the charge of theft.
Counsel for the respondent has in a summary form stated what the Court has to consider in order to determine whether a matter ought to have come by way of review or appeal. He said in both appeals and reviews the quest or expectation is to have the decision set aside.
As shown by the respondent’s counsel where the attack is on the decision arrived at based on the facts and the law, the correct route would be an appeal, but where the attack is on the wrong method or procedure that was followed then a review will be the correct option.
There has to be a clear distinction between an appeal and review, as is explained by Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa, 4th Edition at 932;
“The reason for bringing proceedings under review or appeal is usually the same, is to have the judgment set aside. Where the reason for wanting this is that the Court came to a wrong decision or conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the grievance is against the method of the trial, it is proper to bring the case on review. The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked.”
Also in Nkuebe Khoeli v Hertiq Mapeshoane 1963 – 66 HCTLR 127 at 128 C – D and Judicial Service Commission and Others v Chobokoane 2000 – 2004 LAC 859 at 864 A – B Steyn P remarked as follows:-
“It should be borne in mind that, when exercising review functions, the Court ‘is concerned with the legality of the decision, not its merits’ (Baxter, Administrative Law, 306).”
The respondent relied for his argument on the case of Moonlite Taxis v Phomolo Seboka C of A (CIV) No.6 of 2007 where the Court of Appeal held that it was wrong for the Court a quo to have allowed application for review on the ground that the Magistrate misdirected herself in granting default judgment for amount claimed (M16,800.00) while appellant had allegedly proved a debt of M22,500.00, as there was no misdirection.
In refusing to recuse herself the 1st respondent made a decision and gave her reasons. To challenge such a decision applicant had to appeal against such a decision as it does not involve any misdirection. In the same vein if evidence which ought not to have been admitted was admitted that also is appeable not reviewable. No evidence can be a subject of a review but appeal. Applicant had challenged the evidence that was led without addressing any irregularities in the procedure in leading such evidence.
Applicant further attacked the sentence that was imposed showing that the offence being a common theft ought not to have only attracted a custodial sentence but also an option of a fine. Surely that can never be reviewable but a ground for appeal.
In the premise the submissions by the applicant alleging irregularities in the conduct of the 1st respondent’s proceedings in CR64/2010 are without merit when considering a review.
The application for review is thus dismissed.
A. M. HLAJOANE
For Applicant: Mr Nthontho
For Respondents: Mr Thabane
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