Mamase and Others v The State

Three appellants faced charges in the Bhisho High Court for contravening the Prevention and Combating of Corrupt Activities Act 12 of 2004 and fraud. The charges arose in various jurisdictions both within and outside the area of jurisdiction of the Bhisho High Court. The appellants gave notice in terms of s 106(3) of the Criminal Procedure Act 51 of 1977 that they intended to plead lack of jurisdiction. The state attempted to cure this by amending the indictment to allege events occurred "and/or in Bhisho", and then produced a direction dated 15 September 2006 by the National Director of Public Prosecutions issued in terms of s 22(3) of the National Prosecuting Authority Act 32 of 1998 directing that proceedings be commenced in Bhisho. The indictments had been served on 26 August 2005. The parties approached the trial court to decide, prior to plea, whether the direction validly conferred jurisdiction. Miller J found the direction was issued later than provided for in legislation but ruled it was not a fatal shortcoming and declared the direction valid and effective. The appellants sought and were granted leave to appeal to the Supreme Court of Appeal.

• Whether a direction issued by the National Director of Public Prosecutions under s 22(3) of the National Prosecuting Authority Act 32 of 1998 must be issued before criminal proceedings commence
• Whether a trial court has jurisdiction to make a ruling on jurisdiction prior to an accused person pleading
• Whether a ruling made prior to plea is appealable
• Whether a direction issued after proceedings have commenced can validly confer jurisdiction on a court

1. The appeal is upheld. 2. The order of the court below is set aside and replaced with: "No order is made on the application."

A direction issued by the National Director of Public Prosecutions under s 22(3) of the National Prosecuting Authority Act 32 of 1998 must be issued before criminal proceedings commence in order to validly confer jurisdiction on a court. Criminal proceedings commence when an indictment is served on an accused (s 76(1) of the Criminal Procedure Act 51 of 1977), and jurisdiction is determined at that stage. A direction issued after proceedings have commenced cannot retrospectively confer jurisdiction on a court. A trial court has no power to make rulings on jurisdiction prior to an accused pleading to charges, as no justiciable issue exists before plea. A court cannot assume jurisdiction through the exercise of discretion when the statutory requirements for jurisdiction have not been satisfied.

The court observed that considerable delay and costs could have been avoided if a practical solution had been adopted: the charges could have been withdrawn, a fresh direction issued, and the appellants served with a new indictment, all of which could have been completed in a matter of hours. The court noted that the analogy made by Nepgen J in S v Mpanbaniso between s 111 of the CPA and its predecessor was valid and convincing, with the legislative change from "trial" to "proceedings" indicating clear legislative intention to ensure proceedings (not trials) commence in the designated jurisdiction. The court also noted that decisions on jurisdiction are traditionally appealable, and that an order that is final and definitive in its effect is capable of appeal.

This case establishes important principles regarding the proper timing and effect of directions issued by the National Director of Public Prosecutions under s 22(3) of the National Prosecuting Authority Act to confer jurisdiction on courts. It clarifies that such directions must be issued before criminal proceedings commence (i.e., before service of indictment) and cannot retrospectively cure jurisdictional defects. The judgment also clarifies procedural issues regarding when trial courts have jurisdiction to make rulings and the proper stages at which jurisdictional challenges should be raised. It emphasizes that courts cannot assume jurisdiction through discretionary exercises when the statutory requirements for jurisdiction have not been met. The case provides guidance on criminal procedure and the limits of trial court powers prior to plea.