THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No. 248/11

THE STATE                                                                               Appellant

and

ARTHUR TSHEPO MEJE                                            First Respondent

EDWARD MQAHAYI                                               Second Respondent

Neutral citation: S
v
Meje
(248/11)
[2011] ZASCA
(13 September 2011)
Coram:
Mthiyane, Maya, Shongwe, Seriti JJA and Plasket AJA
Heard:
2 September 2011
Delivered:
13 September 2011

Summary:
Criminal Procedure – territorial jurisdiction of court to be
determined at date of commencement of proceedings – s 110 of Criminal
Procedure Act 51 of 1977 vests territorial jurisdiction in a court in the
absence of objection to jurisdiction.

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Engelbrecht AJ and
Vorster AJ sitting as a court of appeal):

(1) The appeal is upheld and the order of the court below is set aside.
(2) The respondents’ convictions and sentences are re-instated.
(3) The matter is remitted to the court below for the appeal to proceed on
the merits.

JUDGMENT

PLASKET AJA (MTHIYANE, MAYA, SHONGWE and SERITI JJA
concurring)
[1] The respondents were convicted, in a regional court sitting in
Pretoria, of five and 14 counts of fraud respectively. The first respondent
was sentenced to seven years’ imprisonment of which two years were
conditionally suspended and the second respondent was sentenced to eight
years’ imprisonment of which two years were conditionally suspended. They
appealed against both their convictions and sentences and when their
appeals were heard in the North Gauteng High Court (Pretoria), the court
(Engelbrecht AJ and Vorster AJ) raised the issue of whether the trial court
had had jurisdiction to try the respondents. They duly found that it did not
and set aside the respondents’ convictions and sentences without dealing
with the merits of the appeal.

[2] The sole issue in this appeal brought by the State1 in terms of s 311
of the Criminal Procedure Act 51 of 1977 is whether the trial court had
jurisdiction to try the respondents. It is clearly a question of law. The issue
arose as a result of the restructuring of the regional court in the province of
Gauteng after the date of the commission of the offences of which the
respondents had been convicted but before the date on which they first
appeared in the trial court.

1 There was no appearance by or on behalf of the respondents although they were aware of
the appeal and the date on which it was argued.

[3] According to the charge sheet the respondents had committed
various acts of fraud during 1998 and 1999 ‘at or near Kagiso in the
Regional Division of Gauteng’. They first appeared on 24 June 2004 in the
regional court for that division sitting in Pretoria and were, as stated above,
subsequently tried and sentenced in that court.

[4] At the time of the commission of the offences the Southern Transvaal
Regional Division had territorial jurisdiction in respect of offences committed
in Kagiso (in the magisterial district of Krugersdorp).2 Later, however, the
Regional Divisions of the Southern Transvaal and the Northern Transvaal
were amalgamated into one regional division called the Regional Division of
Gauteng with seats at 23 places including Pretoria. This occurred with effect
from 1 April 2004.3

[5] The court below set aside the convictions and sentences of the
respondents on two bases. The first was that as the offences were
committed within the territorial jurisdiction of the erstwhile Regional Division
of the Southern Transvaal, a court sitting in Pretoria, within the territorial
jurisdiction of the erstwhile Regional Division of the Northern Transvaal, did
not have jurisdiction to try the respondents. Secondly, it held that s 110 of
the Criminal Procedure Act could not avail the State because it did not
‘create substantive jurisdiction’. It appears to me that the logical conclusion
of the reasoning of the court below is that no court could have tried the
respondents as the only court that had jurisdiction had ceased to exist when
the proceedings commenced.

[6] In my view – and for the reasons that follow – the court below erred
in respect of both of the issues on which it relied.

2 Government Notices 641 and 642, promulgated in Government Gazette 7515 of 27 March
1981 created, out of the Transvaal Regional Division, the Regional Divisions of the
Northern Transvaal and the Southern Transvaal respectively.
3 Government Notice 219, Government Gazette 26091 of 27 February 2004.

[7] In the first instance, the court below found that the jurisdiction of a
court to try an accused must be determined at the time the offence with
which the accused is charged was committed. That is contrary to what this
court found the position to be in S v Mamase & another.4 Snyders JA held in
that case that the ‘jurisdiction of a court is determined at the stage that
proceedings are commenced’ and that, in terms of s 76(1) of the Criminal
Procedure Act, proceedings commence when, as in this case in which the
respondents were not summoned to court but were arrested, the charge
sheet is lodged with the clerk of the court.5

[8] The respondents first appeared in court on 24 June 2004. They were
first provided with the charge sheet on a date between their appearances on
5 October 2004 and 30 November 2004 because, on the latter date, it is
recorded that they had confirmed that they had received both the docket
and the charge sheet. While there is no record of when the charge sheet
was lodged with the clerk of the court, it can be accepted that the earliest
date on which this could have occurred was 24 June 2004. Consequently,
the proceedings against the respondents commenced, at the earliest, on 24
June 2004. As at that date, one regional division, the Regional Division of
Gauteng which had came into existence on 1 April 2004, had territorial
jurisdiction over the entire province of Gauteng. As Kagiso falls within the
province of Gauteng, any court of that Regional Division, including one
sitting in Pretoria, had jurisdiction to try the respondents on charges of
fraud.

[9] In the second instance, the court below erred in its application of s
110 of the Criminal Procedure Act. This section provides:
‘(1) Where an accused does not plead that the court has no jurisdiction and it at
any stage-

(a) after the accused has pleaded a plea of guilty or of not guilty; or

(b) where the accused has pleaded any other plea and the court has
determined     such plea against the accused,

4 S v Mamase & another 2010 (1) SACR 121 (SCA).
5 Para 12.

appears that the court in question does not have jurisdiction, the court shall for the
purposes of this Act be deemed to have jurisdiction in respect of the offence in
question.
(2) Where an accused pleads that the court in question has no jurisdiction and the
plea is upheld, the court shall adjourn the case to the court having jurisdiction.’

[10] In S v Pale & ‘n ander6 this court set out the purpose and effect of s
110 and, in so doing, stated in terms that it was intended precisely for cases
such as the present (on the court below’s assumption that the trial court had
no territorial jurisdiction). In that case Viviers JA held:7
‘Artikel 110 is hoofsaaklik bedoel om voorsiening te maak vir die geval waar ‘n
bepaalde hof wel jurisdiksie het om die misdaad waarvan die beskuldigde
aangekla word, te bereg, maar die verkeerde hof is vanweë een of ander
jurisdiksionele feit soos bv dat die misdaad buite die hof se regsgebied gepleeg is.
Die artikel skep nie substantiewe jurisdiksie nie en kan nie aan ‘n landdros ‘n groter
jurisdiksie verleen as wat hy regtens het nie. Dit verleen bv nie regsbevoegdheid
aan ‘n landdros om ‘n saak te verhoor wat hy ingevolge art 89 van die Wet op
Landdroshowe nie mag verhoor nie, al betwis ‘n beskuldigde nie die
regsbevoegdheid van die hof nie. . . . So ook kan art 110 nie jurisdiksie verleen
aan ‘n hof om ‘n misdaad wat in ‘n ander land gepleeg is, te bereg nie. Artikel 110
verleen wel territoriale jurisdiksie aan ‘n hof wat dit nie gehad het nie, suiwer op
grond van die beskuldigde se stilswyende aanvaarding daarvan, deurdat hy die
verhoor laat voortgaan sonder om die punt te opper wanneer hy pleit’. (Emphasis
added)

[11] Regrettably, it appears that the distinction between the concepts of
substantive jurisdiction – the jurisdiction, in this case, to try accused
charged with fraud – and territorial jurisdiction eluded the court below.
Section 110 does not confer substantive jurisdiction on a court but, in the
absence of a plea of absence of jurisdiction,8 it may acquire territorial
jurisdiction it otherwise does not have.

6 S v Pale & ‘n ander 1995 (1) SACR 595 (A).
7 At 598d-h. (References omitted.) See too Etienne Du Toit, Frederick J De Jager, Andrew
Paizes, Andrew St Quintin Skeen and Steph van der Merwe Commentary on the Criminal
Procedure Act 16-1 (service issue 45, 2010).
8 Criminal Procedure Act, s 106(1)(f).

[12] As a result of the above, I am of the view that the appeal must
succeed. Section 311(1)(a) of the Criminal Procedure Act empowers this
court, when it upholds an appeal by the State from a high court sitting as a
court of appeal, to ‘re-instate the conviction, sentence or order of the lower
court appealed from, either in its original form or in such a modified form as
the said Appellate Division may consider desirable’. The convictions and
sentences of the respondents must obviously be re-instated in their original
form but their appeals have not been heard on the merits. While s 311 does
not explicitly provide that this court may remit a matter to the appeal court of
first instance, it was held in Attorney-General (Transvaal) v Steenkamp9
(dealing with a predecessor of s 311) that in circumstances such as these
the matter could be remitted as ‘it could hardly have been the intention of
the Legislature that, where the order of this Court does not finally dispose of
the issues raised in the first Court of Appeal, some of those issues must …
be left hanging in the air’.

[13] The following order is made.
(1) The appeal is upheld and the order of the court below is set aside.
(2) The respondents’ convictions and sentences are re-instated.
(3) The matter is remitted to the court below for the appeal to proceed on
the merits.

_____________________
C PLASKET
Acting Judge of Appeal

9 Attorney-General (Transvaal) v Steenkamp 1954 (1) SA 351 (A) at 357F-G.

APPEARANCES

APPELLANT:                                           J M Ferreira (with him K Malapane)

Office of the Director of Public Prosecutions, Pretoria

RESPONDENTS:                                                                    No appearance

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL

13 September 2011

STATUS: Immediate

THE STATE V ARTHUR TSHEPO MEJE AND ANOTHER

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) upheld an appeal by the State, and set
aside an order of the North Gauteng High Court (Pretoria).

The respondents were convicted in the regional court, Pretoria of five and 14 counts
of fraud respectively and sentenced to seven years and eight years imprisonment,
conditionally suspended for two years.

They appealed against both their convictions and sentences to the North Gauteng
High Court. It found that the trial court did not have the jurisdiction to try the
respondents and set aside both the convictions and sentences. It held that as the
offences were committed within the territorial jurisdiction of the erstwhile Regional
Division of the Southern Transvaal, a court sitting in Pretoria within the territorial
jurisdiction of the erstwhile Regional Division of the Northern Transvaal did not have
jurisdiction to try the respondents despite the fact that, by the time the respondents
first appeared in court, these courts had been amalgamated into the Regional
Division of Gauteng, having jurisdiction throughout the province of Gauteng.
Secondly, the high court held that s 110 of the Criminal Procedure Act 51 of 1977
could not avail the State because it did not ‘create substantive jurisdiction’.

The sole issue raised by the appellant before the SCA was whether the trial court
had the jurisdiction to try the respondents.

The SCA held that the jurisdiction of a court to try an accused is determined at the
time when the proceedings commenced. At that time only one Regional Division, the
Regional Division of Gauteng existed and it had jurisdiction over the whole of the
province of Gauteng, including Kagiso where the offences were alleged to have
been committed. Secondly, it found that while s 110 of the Criminal Procedure Act
did not confer substantive jurisdiction on a court, it conferred territorial jurisdiction on
it in the absence of a plea of absence of jurisdiction.

The SCA went on to state that s 311(1)(a) of the Criminal Procedure Act empowered
it to re-instate the conviction and sentence, which it did, and ordered that the matter
be remitted to the court below for the appeal to proceed on the merits.

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