The State v Arthur Tshepo Meje and Edward Mqahayi

The respondents were convicted in a regional court sitting in Pretoria of fraud offences committed during 1998 and 1999 at or near Kagiso in the Regional Division of Gauteng. The first respondent was convicted on 5 counts of fraud and sentenced to seven years' imprisonment (two years conditionally suspended). The second respondent was convicted on 14 counts of fraud and sentenced to eight years' imprisonment (two years conditionally suspended). At the time the offences were committed, the Southern Transvaal Regional Division had territorial jurisdiction over Kagiso (in the magisterial district of Krugersdorp). However, by the time the respondents first appeared in court on 24 June 2004, the Southern Transvaal and Northern Transvaal Regional Divisions had been amalgamated into one Regional Division of Gauteng with effect from 1 April 2004. On appeal to the North Gauteng High Court, the court raised mero motu the issue of territorial jurisdiction and set aside the convictions and sentences without dealing with the merits, holding that the trial court lacked jurisdiction. The State appealed to the Supreme Court of Appeal.

• When is territorial jurisdiction to be determined - at the time the offence was committed or at the commencement of proceedings?
• Did the trial court sitting in Pretoria have territorial jurisdiction to try the respondents for offences committed in Kagiso prior to the amalgamation of regional divisions?
• What is the effect of section 110 of the Criminal Procedure Act 51 of 1977 on territorial jurisdiction where no objection to jurisdiction is raised by the accused?
• What is the distinction between substantive jurisdiction and territorial jurisdiction in the context of section 110?

The appeal was upheld. The order of the North Gauteng High Court was set aside. The respondents' convictions and sentences were re-instated. The matter was remitted to the court below for the appeal to proceed on the merits.

The binding legal principles established are: (1) The territorial jurisdiction of a court is to be determined at the stage that proceedings are commenced, not at the time the offence was committed. Proceedings commence when the charge sheet is lodged with the clerk of the court in terms of section 76(1) of the Criminal Procedure Act 51 of 1977. (2) Section 110 of the Criminal Procedure Act does not create substantive jurisdiction but does confer territorial jurisdiction on a court that otherwise lacks it, where an accused does not plead that the court has no jurisdiction. The distinction between substantive jurisdiction (the power to try a particular category of offence) and territorial jurisdiction (jurisdiction over a particular geographic area) is critical. Section 110 operates to vest territorial jurisdiction in the absence of an objection.

The court observed that the logical conclusion of the reasoning of the court below would be that no court could have tried the respondents as the only court that allegedly had jurisdiction (the Regional Division of the Southern Transvaal) had ceased to exist when the proceedings commenced - an absurd result. The court also noted that while section 311 of the Criminal Procedure Act does not explicitly provide that the Supreme Court of Appeal may remit a matter to the appeal court of first instance, relying on Attorney-General (Transvaal) v Steenkamp 1954 (1) SA 351 (A), it held that such remittal is permissible as it could hardly have been the intention of the Legislature that issues raised in the first Court of Appeal should be left unresolved where the Supreme Court of Appeal's order does not finally dispose of all issues.

This case is significant in South African criminal procedure law for clarifying two important principles: (1) territorial jurisdiction of a court must be determined at the date of commencement of proceedings (when the charge sheet is lodged), not at the date the offence was committed; and (2) section 110 of the Criminal Procedure Act distinguishes between substantive jurisdiction (the power to try a particular type of offence) and territorial jurisdiction (jurisdiction over a geographic area). While section 110 does not create substantive jurisdiction, it does vest territorial jurisdiction in a court where the accused does not raise a plea of lack of jurisdiction. This case provides important guidance on how courts should deal with jurisdictional issues arising from administrative restructuring of courts and establishes that such restructuring does not result in accused persons escaping prosecution simply because regional divisions were amalgamated between the date of the offence and the commencement of proceedings.