THE HIGH COURT OF SWAZILAND
Rev. Case No. 33/94
the matter of:
DIRECTOR OF PUBLIC PROSECUTIONS Applicant
THE SENIOR MAGISTRATE, NHLANGANO First Respondent
PHILLIP KHESHE LUKHELE Second Respondent
in the matter of:
DIRECTOR OF PUBLIC PROSECUTIONS Applicant
THE SENIOR MAGISTRATE, NHLANGANO First Respondent
TIMOTHY MKHONTA Second Respondent
Director of Public Prosecutions in person
Lukhele for the first respondent
respondents P.K. Lukhele and T. Mkhonta in person
This is an application by the Director of Public Prosecutions under
92 of the Magistrate's Courts Act, No. 66 of 1938. That section
If a decision is given by a magistrate's court in a criminal case on
a matter of law, and the Director of Public Prosecutions or his
representative is dissatisfied with such decision, the Director of
Public Prosecutions or his representative may seek the ruling thereon
of the High Court, and the High Court may set down the matter to be
argued before it."
application in fact relates to two separate criminal cases. On 25th
March 1994, the respondent Timothy Mkhonta was arrested and charged
with rape. The offence was allegedly committed on 15th March. On the
following day, i.e. 26th March, the respondent Phillip Lukhele was
arrested and charged also on a charge of rape, which was said to have
been committed on that later day. The two charges were thus
unrelated. Strictly, I think that there ought to have been two
separate applications under section 92, but they can be heard
conveniently together, as they involve the same point.
men were first brought before a Magistrate, in the Magistrate's Court
at Nhlangano, on 28th March, in Criminal Cases NHO 66/94 and NHO
to the court records, on that day each was remanded in custody until
5th April, pending the completion of police investigations. When they
returned to Court on 5th April, each was again remanded in custody
for two days, for the setting of a trial date.
7th April they were remanded in custody again, until 14th April, for
the setting of trial dates and on that day in custody to 19th April,
once more for the setting of trial dates.
that last occasion, each came before the Senior Magistrate at
Nhlangano, who is the first respondent here.
respect of Mkhonta, the court record is in the following terms:
present. Public Prosecutor states that the Director of Public
Prosecutions insists that a further remand be granted as the matter
will be tried at the High Court.
application for a further remand has not been substantiated
sufficiently to warrant a further remand and the application is,
Court record in respect of Lukhele's appearance is to the following
present. Public Prosecutor (Mkhonta) states that the docket is yet to
be sent to Director of Public Prosecutions. He applies to have the
matter remanded once more and the Director of Public Prosecutions is
not in a position to state when the matter will be set for trial. The
Director of Public Prosecutions expects only the Registrar of the
High Court to set the trial date.
for a further remand has not been substantiated sufficiently to
warrant a further remand in custody. The application is therefore
these present proceedings before the High Court, the Director seeks
rulings under section 92 to the following effect:
in insisting that the cases should be heard by him or by a court
determined by him, the Senior Magistrate usurped or interfered
unlawfully with the powers of the the Director of Public
Prosecutions, as conferred by section 91 of the Constitution and
"relevant" sections of the Criminal Procedure and Evidence
Act, 1938 (No. 67 of 1938).
the Senior Magistrate's decisions on 19th April, refusing to remand
each of the accused, were not made judicially.
my brother Strydom pointed out during the hearing here, the second
ground on which a review is sought must be sustained for the very
short reason that in the reasons which he himself subsequently gave
for his decisions, the learned Senior Magistrate acknowledged
explicitly that it could not be said properly, in either case, that
the Crown had delayed unreasonably in investigating and prosecuting
the charge; and that the reasons why in fact he refused to grant
further remands cannot be sustained in law, as we shall explain.
also consider, however, that it is desirable to comment on the first
ground of review on which the Director has sought to rely, and other
aspects of the application.
Director initiated the application on 27th April, by filing in the
High Court registry a document described as an application for review
in terms of section 92. It contained a narrative of facts. Although
on the last page it was indicated that it was also given to the
Senior Magistrate and to the other respondents, it was not a notice
of motion as such, and it was not supported by any affidavit.
document was put before me in chambers on the same day, at my
direction. To summarise very briefly what happened after that, I
directed the Deputy Registrar to set it down in open court two days
later (in other words urgently, and on the document as it stood), to
notify all parties and to bring up the record. After that there were
various postponements. The first was to enable the Senior Magistrate
to provide his reasons for his decisions (an order which was conveyed
to him incorrectly, but perhaps understandably, by the then Acting
in terms suggesting that he was required to do so). The second was
because I had come by then to the view that the Director's
application should by way of notice of motion with a supporting
affidavit, and I therefore gave him an opportunity to lodge them,
indicating that the matter was to be heard on a basis of urgency.
After that it was postponed partly, as I recall it, to allow the
Director and the Senior Magistrate further time, but also in order
that a full court could hear the application.
Senior Magistrate took the unusual step of instructing counsel to
represent him, and of filing an affidavit in opposition to one given
by the public prosecutor at Nhlangano in support of the notice of
motion. He also provided written reasons for his decisions.
answering affidavit, as is commonly the practice here, contained not
only averments of fact but also matters of argument. In it, he
indicated that he wished to apply for my recusal and he also dealt
with allegations of fact contained in the public prosecutor's
this time, I do not consider that any useful purpose is served by
dealing in detail with the allegations of fact, the inferences and
the arguments advanced by the Senior Magistrate in support of his
application for recusal. Some of the matters he referred to are
irrelevant. Some are improper, what the affidavit shows, clearly, is
that the Senior Magistrate was upset by the course of the application
- by which I mean the manner in which it was first brought and the
way in which it thereafter proceeded, prior to the hearing.
senior Counsel appearing for the Senior Magistrate argued the issue
however, he confined himself to narrower grounds. In summary, he
submitted that the application had not complied initially with rule
53. In particular, no supporting affidavit had been lodged in support
of it. Because I had myself put in train the subsequent course of the
application, i.e. by directing that a notice of motion and a
supporting affidavit should be filed to comply with rule 53 -and
also, I think (although Mr. Lukhele did not himself say so
explicitly) because I directed, before any supporting affidavit had
been filed, that the matter be accorded urgency - it appeared
to the Senior Magistrate that I had already prejudged the matter.
submissions are, with respect, misconceived. As this court pointed
out recently in Diamond v. The King (Criminal Review Case No. 93/94
at page 3) (a decision delivered, however, after the hearing of the
present application), the High Court of Swaziland has very wide
powers of review of the proceedings of all subordinate courts, at
common law inherently and also by statute.
fact that the court affords an applicant an opportunity to amend his
papers to comply with the rules of court does not in itself properly
give rise to an appearance of bias. On a review of the legality of a
decision of a subordinate court, the fact that the High Court itself
takes an initiative in according urgency to an application does not
do so either.
to the first ground on which the Director has sought the review of
the Senior Magistrate's decisions, what the record of the lower court
shows in each case is that on 19th April, the prosecutor requested a
further remand, and that the Senior Magistrate refused to grant one.
The record also does show that the public prosecutor informed the
court in Mkhonta's case that the Director of Public Prosecutions had
decided to prosecute the charge in the High Court. In Lukhele's case,
it also indicates that at least by implication, the public prosecutor
intimated that this course would be taken. However, it does not show
that in either case the Director had already applied to the Chief
Justice for summary trial in the High Court, and the public
prosecutor's supporting affidavit, in paragraph 14, in fact makes it
clear that the Director had not yet taken that step in either case.
record does not show, either, that the Senior Magistrate insisted on
determining the court by whom the charges should be tried. Moreover,
he himself has given an affidavit saying that he did not do so.
is, in my view, therefore no substance in the complaint that he
usurped or interfered with the functions of the Director.
respective functions of a Magistrate and of the Director of Public
Prosecutions are quite clear. It is important that each is understood
by them clearly. This is essential for the efficiency of the criminal
process, and also for the protection of the proper interests of
trials, and applications for review, are of course not adversarial
contests between judicial officer and prosecutor. It is wrong, and
unseemly, that they should be allowed to acquire that flavour.
Ordinarily, on a review, the judicial officer whose decision is being
called into question is cited as a party for formal purposes only. He
will have no need to do anything beyond arranging for the record to
be sent up to the High Court, including any written reasons that he
has or may wish to give for his decision.
may be necessary, very occasionally, for him to make an affidavit as
to the record. This is, however, to be avoided as far as possible. It
is, generally, undesirable for a judicial officer to give evidence
relating to proceedings that have been taken before him. In
principle, there may be a need for a Magistrate to be represented by
counsel upon a review if his personal conduct or reputation is being
impugned but this, too, will only be in exceptional circumstance.
to the functions of the court and the prosecutor, it is for the
Director of Public Prosecutions alone to decide whether or not to
pursue a prosecution, and in which court to do so. It is so well
settled as to be properly regarded as trite that a court has no power
to insist that a criminal proceeding shall be continued or, subject
to any issue of jurisdiction or other provision governing the matter,
in which court it shall proceed.
this means, however, is that it is for the Director of Public
Prosecutions alone to decide whether to continue to carry a criminal
prosecution through to its conclusion, or to offer no evidence or
further evidence, or to discontinue the proceedings. The
consequences, for the accused, will vary according to the course that
the Director takes and the point of time at which he does so. Thus,
where the accused has pleaded, and thereafter the Director sees fit
to stop the case against him under section 6 of the Criminal
Evidence Act 1938, the accused is entitled under that section to be
a Magistrate's court is for the time being seised of a case, and the
prosecutor is pursuing it, it is for the presiding Magistrate in the
exercise of his judicial discretion to decide whether to require the
case to proceed or to grant a postponement and, in consequence of
that, any further remand: see sections 139 and 144 of the Criminal
Procedure and Evidence Act 1938 (No. 67 of 1938).
are of course procedural requirements of a nature that is
fundamentally important because if it were otherwise, an accused
person could be detained indefinitely, at the insistence of the
Director, until he himself decided in which court to proceed.
the present case, the charges were lodged in the Magistrates' Court
at Nhlangano. By 19th April, the Director had not applied to the High
Court for summary trial on indictment. The Senior Magistrate was for
the time being duly seised of both cases.
only question which therefore arose was whether or not the learned
Senior Magistrate should grant further remands. The question was a
matter for the discretion of the Senior Magistrate, which discretion
fell however to be exercised judicially.
I have already indicated, it is evident from the learned Senior
Magistrate's own subsequent reasons for his decisions that he himself
considered that it was not unreasonable to allow the Crown further
time in each case. It is also evident that the reason why he in fact
refused to grant further remands was that because he had formed a
view that the Director was attempting to dictate to him the manner in
which he, the presiding Magistrate, had to exercise his discretion in
that was not a relevant reason for refusing further remands. As my
brother Strydom observed at this hearing, what the Senior Magistrate
ought to have done, thinking as he did (and in our view quite
correctly) that further remands were not unreasonable, was to say in
effect "I will grant further remands, not because I am being
to do so, but because as the presiding Magistrate, and in the
exercise of my own discretion, I consider it reasonable to do so."
that basis, the Director's objection on the second ground of review,
on this application, is sustained. If the Director of Public
Prosecutions is still proceeding on the charges, and the accused are
not in custody, they should be taken into custody accordingly.
is so ordered.