S v Porritt and another  4 All SA 223 (GJ)
Criminal procedure – Jurisdiction – Choice of forum where case is tried – Averment by accused that if their trial was to continue in Johannesburg as opposed to Pietermaritzburg, where the first accused resided and where the second accused could be put up at little or no cost, they would be deprived of a fair trial – Circumstances of accused as referred to by the State such that accused failing to satisfy court that they would not receive a fair trial or would otherwise suffer trial prejudice under section 35 of the Constitution of the Republic of South Africa, 1996 if the case continued in Johannesburg.
The accused sought declaratory orders that the case against them be postponed for hearing in Pietermaritzburg, and that any offences contained in the indictment which were allegedly committed in Johannesburg be centralised to the High Court sitting in Pietermaritzburg.
When the prosecution was instituted against the accused in the present division in 2005, although the second accused was then resident within the area of jurisdiction of this Court, the first accused was a resident of Pietermaritzburg. All the charges contained in the original indictment were alleged to have occurred within this Court’s jurisdiction. Since the second accused resided at the time in Johannesburg, the State could not have instituted proceedings against her in Pietermaritzburg. The State relied on the allegations, contained in the indictment as read with the further particulars supplied later, that the offences had been committed within this Court’s jurisdiction. However, the prosecuting authority (“NDPP”) directed that 74 offences with which the accused were charged and which were allegedly committed at or near Pietermaritzburg be tried in the South Gauteng High Court during the trial of the same accused in that court. Subsequently, the State decided to withdraw all the offences allegedly committed in Pietermaritzburg.
Held – A court does not initiate the selection of the forum where a case is to be tried. Its function in so far as jurisdiction is concerned is to determine, in case of a challenge, whether the party initiating the proceedings (ie the dominus litis) has selected the correct forum. A statute may, however, confer on the court a power to transfer or re-direct the case to another jurisdiction.
Under section 179(2) of the Constitution, the power to institute proceedings in a criminal case vests with the National Prosecuting Authority (the “NPA”). The decision of the prosecuting authority to prosecute an accused in a particular division of the High Court is subject to the High Court having jurisdiction to entertain the case, including acquiescence to its jurisdiction by reason of section 110(1) of the Criminal Procedure Act51 of 1977. Subject to any other specific statutory provision, the jurisdiction of a High Court is circumscribed by the provisions of section 21(1)and (2) of the Superior Courts Act 10 of 2013, which gives a High Court jurisdiction “over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction”. A division also has jurisdiction over any person residing outside its area of jurisdiction who is joined as a party to any cause in relation to which the court has jurisdiction, or who in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division. A court’s jurisdiction is determined at the time the proceedings are instituted and it does not change even if the jurisdictional ground subsequently ceases to exist.
The only issue which the Court was required to address during argument was whether the accused could raise at this stage, that their right to a fair trial would be compromised if the proceedings were to continue in Gauteng; and if so, whether their rights had been infringed.
The accused contended that if the trial was to continue in Johannesburg as opposed to Pietermaritzburg, where the first accused resided and where the second accused could be put up at little or no cost, they would be deprived of the fair trial provided for in section 35(3)(b) of the Constitution and the right to have adequate time and facilities to prepare a defence. The Court stated that if the accused’s application succeeded, then the court needed do no more than declare that their fair trial rights would be infringed if the trial was to continue before it. It would then be up to the prosecuting authority to decide before which court proceedings were to continue.
A preliminary question was whether it was competent for the accused to raise the above issue before they pleaded to the charges. The Court found that the possibility of a pre-plea attack on jurisdiction is not impermissible.
In contending that their right to a fair trial will be infringed as referred to above, the accused referred to the high cost of conducting a very lengthy trial in Johannesburg; the inability to prepare for and conduct such a trial away from where the bulk of the documentary evidence that may be needed is located; and the emotionally debilitating effect of being away from home and family for protracted periods. However, the State referred to the fact that the second accused’s erstwhile place of residence in Johannesburg was still available to the accused. The house was owned by a company in which both accused remained directors. There appeared to be no reason why the house could not be used by the accused as their base, providing them with accommodation and a place from which they could prepare for their trial. The Court found that the accused had not made out a case with regard to their inability to prepare for trial and to the physical and psychological distress they might endure, if those could be construed as a justifiable basis for the purposes of invoking fair trial prejudice under section 35(3)(b) of the Constitution. The accused had therefore failed to satisfy the court that they would not receive a fair trial or would otherwise suffer trial prejudice under section 35of the Constitution if the case continued in Johannesburg.