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IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Review No. : 845/2006

In the review between:-

THE STATE

versus

PAULINA KAREDI

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CORAM: CILLIé J et VAN DER MERWE J

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JUDGMENT BY: VAN DER MERWE J

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DELIVERED ON: 24 AUGUST 2006

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[1] This matter was referred to this Court for so-called special review.

[2] The accused was charged in the magistrate’s court of Welkom with driving a vehicle on a public road while under the influence of intoxicating liquor in contravention of section 65(1) of the National Road Traffic Act, No. 93 of 1996, as well as with reckless or negligent driving alternatively driving without reasonable consideration for any other person, in contravention of sections 63(1) and 64 of Act 93 of 1996 respectively. It is alleged that the incident in question took place on 10 December 2003. The presence of the accused in court was obtained by summons in a criminal case and the accused appeared in court as a result thereof for the first time only on 24 June 2005.

[3] At her first appearance in court, the accused indicated that she will make use of her own legal representation. Thereafter the matter was postponed on several occasions. On most of these occasions the accused was represented by either Mr. Ngcango or Mr. Ramatsoele. It is also indicated on the record that a Mr. Macheka was the attorney of the accused. Eventually the matter was postponed to 30 March 2006 for trial.

[4] On 30 March 2006, when the matter was called at approximately 9h15, Mr. Ngcango informed the court that Mr. Macheka would be defending the accused, and that he had requested Mr. Ngcango to inform the court that he would be late and to ask on his behalf that the matter stand down untill 11h00. This request was acceded to. At 11h15 Mr. Macheka was still absent. Mr. Ngcango informed the court that he was unable to reach Mr. Macheka on his cellphone and that the accused was not prepared to instruct Mr. Ngcango in respect of the matter. The accused then in person requested that the matter stands down untill 14h00 in order to afford her an opportunity to call the attorney. The magistrate, however, ruled that the matter stands down untill 12h30. At 12h30 Mr. Ngcango informed the court that he is not prepared to proceed with the defence of the accused, since the accused refuses to issue him with instructions as she prefers Mr. Macheka. The accused then repeated the request that the matter stand down untill 14h00 but the magistrate ruled that the matter must proceed without legal representation for the accused, whereafter Mr. Ngcango was excused.

[5] The accused then refused to plead to the charges and a plea of not guilty was entered by the magistrate. Thereafter the prosecutor called three witnesses, firstly, the driver of the vehicle with which the car driven by the accused collided according to his evidence, secondly, a policeman that attended the scene after the collision and thirdly, another policeman who also attended the scene and handed in a sketchplan of the scene of the accident. The gist of the evidence of these witnesses was that the car driven by the accused collided with the other vehicle on the accused’s incorrect side of the road and also that the accused appeared to be under the influence of liquor. After the evidence in chief of each of these witnesses was concluded, the rights of the accused in respect of cross-examination was fully explained. In respect of the first witness the reaction of the accused thereto was that she is not prepared to say anything because her lawyer is not there. After the conclusion of the evidence in chief of the second and third witnesses, the accused simply said that she had no questions. At approximately 16h15 the matter was postponed to 1 June 2006.

[6] On 1 June 2006, an attorney, Ms Erasmus, appeared on behalf of the accused. On 13 June 2006 the request of Ms Erasmus, on behalf of the accused, that the matter be sent for special review, was acceded to and the matter was postponed for that reason.

[7] As appears from what is stated above, the accused has not yet been convicted, in fact, the State case has not been closed. Therefore, the provisions of section 304A of the Criminal Procedure Act, No. 51 of 1997, are not applicable.

[8] The High Court has inherent jurisdiction to review the proceedings of a lower court before conclusion thereof. This power must, however, be exercised sparingly as it is not in the interests of justice that trials be dealt with on a piecemeal basis. As a general rule therefore, the exercise of the power of the High Court to review unconcluded criminal proceedings in the magistrate’s courts, should be limited to those rare cases where injustice cannot be avoided other than by interference before conclusion of the proceedings. See WAHLHAUS AND OTHERS v ADDITIONAL MAGISTRATE, JOHANNESBURG AND ANOTHER 1959 (3) SA 113 (AD) at 119 H – 120 E and ISMAIL AND OTHERS v ADDITIONAL MAGISTRATE, WYNBERG AND ANOTHER 1963 (1) SA 1 (AD) at 5 G – 6 A. This principle was also applied in the new constitutional era. See S v MHLUNGU AND OTHERS 1995 (3) SA 867 (CC) at 895 D – G and LEVACK AND OTHERS v REGIONAL MAGISTRATE, WYNBERG, AND ANOTHER 2004 (5) SA 573 (SCA) at 585.

[9] In the present matter considerable delay has already taken place. The accused is now represented by an attorney. The case for the State has not yet been closed. The attorney for the accused could and should on resumption of the trial apply in terms of section 167 read with section 166(2) of Act 51 of 1977 that the witnesses be recalled for cross-examination. It appears to me to be eminently in the interests of justice that such request be granted. All of this may result therein that the accused is acquitted or accepts a judgment resulting in a conviction. If not, the remedy of appeal or review would then be available.

[10] Whilst the fundamental right of the accused to legal representation is recognised, I am not satisfied that interference on review with the trial of the accused is presently necessitated by unavoidable injustice.

[11] The matter is therefore referred to the magistrate for conclusion thereof in accordance with this judgment.

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C.H.G. VAN DER MERWE, J

I agree.

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C.B. CILLIé, J

/sp