Khumalo v Rex [1983] SZHC 13 (25 February 1983)

Key Facts

Issues

• A secondary issue involves the Respondent's contention that the Director of Public Prosecutions and the Registrar of the High Court should be joined as parties in Section 136 (2) applications. The Respondent argues the Registrar must explain trial delays and the Director has a direct interest in custody matters, while the court ultimately rejects these claims as lacking legal basis.
• The primary issue is whether the Applicant is entitled to immediate discharge and release under Section 136 (2) of the Criminal Procedure and Evidence Act 67/1938 after being detained for six months without a trial date. The Applicant argues his continued custody is unlawful, citing the lack of a hearing date despite the passage of two High Court sessions.

Holdings

• The court held that the Registrar of the High Court is not required to be joined as a party in Section 136 (2) applications because they do not have a direct and substantial interest in the discharge of the Applicant from custody. The court emphasized that the wording of Section 136 does not mandate the Registrar to explain the delay in trial dates, and their involvement would only be for convenience, not necessity.
• The court granted the Applicant's application for discharge and release from custody under Section 136 (2) of the Criminal Procedure and Evidence Act 67/1938, citing a six-month delay in allocating a trial date and two High Court sessions passing without a hearing date. The Applicant undertook not to demean himself in a manner likely to defeat the ends of justice.

Remedies

Legal Principles

• The court prioritized the substance of legal proceedings over procedural formalities by determining that the Registrar’s joinder was not required, despite arguments for convenience. This principle underscores that procedural requirements must align with the core purpose of justice rather than administrative efficiency.
• The court applied the Rule of Law by enforcing the procedural requirement under Section 136 (2) of the Criminal Procedure and Evidence Act 67/1938, which mandates the discharge of an accused if trial is not timely allocated. The judgment clarifies that the Registrar of the High Court lacks a direct and substantial interest in such applications, emphasizing statutory interpretation over procedural convenience.

Precedent Name

• Thokozani Moses Mashilwane and others vs Rex
• Senzo Tsotso Vilane and two others vs Rex

Cited Statute

Judge Name

Passage Text

• In the result, an order is granted in terms of prayer (2) of the notice of application.
• It would appear to me that the reasons advanced by the Respondent in favour of the joinder of the Registrar is that, he allocates trial dates and he has to explain why the Applicants have not been brought to trial. However, in my respectful view, this cannot be so for a number of reasons. Firstly, there is nothing in the wording of Section 136 which requires or calls upon the Registrar to explain why an Applicant has not been brought to trial. On the contrary, if the Section calls upon the Registrar to show sufficient cause, then a proper case of non-joinder would have been made. Secondly, prosecutions of accused persons are brought by the office of the Director of Public Prosecutions in the name of the King. A person is kept in custody on the instance of the Crown, therefore the question of non-joinder does not arise at all in casu. Lastly and most importantly, in my view, the joinder of the Registrar will only be a joinder for convenience. A party has a direct and substantial interest in the following circumstances... The point raised by the Respondent therefore ought to fail.
• I have had occasion to answer this question posed by the Respondent in casu in a number of cases (see Senzo Tsotso Vilane and two others vs Rex - Case No. 18/2003 and Thokozani Moses Mashilwane and others vs Rex - Case No. 295/2003, 133/2003, 187/2003, 191/2003, 129/2003, 130/2003, 131/2003, 83/2003 and 340/2003.)