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[2011] ZAGPJHC 214
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S v Lekwadu (A 478) [2011] ZAGPJHC 214 (19 May 2011)
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
High Court Ref No:
40/11
Magistrates’ Serial No: R 7/2010
Case N0: A 478
Date:19/05/2011
In the special review
matter of:
STATE
versus
KGALUSHI
ALPHEUS LEKWADU
REVIEW JUDGMENT
MEYER , J
[1]
This matter came before us on special review. The accused was
charged in the
Magistrates’ Court, Germiston with the offence
of possession of stolen property. It is alleged in the charge
sheet
that he was found in unlawful possession of one Willard battery
belonging to Spoornet or Transnet on or about 14 October 2009 at
or
near Germiston, in regard to which there was a reasonable suspicion
that it had been stolen and that he was unable to give a
satisfactory
account of his possession.
[2]
The criminal trial of the accused commenced on 3 September 2010.
The state called
two witnesses, Sergeant Josiah Bazima and Mr.
Michael Mxonisi Kaliba whereafter its case was closed. The
accused testified.
He indicated that he wished to call a
witness. On 15 October 2010, the trial was postponed to 7
December 2010.
[3]
A Senior Magistrate, Germiston, requested a special review of this
matter and that
it be ordered that it starts
de novo
before
another magistrate. In a letter dated 11 March 2011 the learned
senior magistrate advised that the magistrate who
presided at the
criminal trial of the accused ‘…has become permanently
unable to continue…’ with it.
He explained as
follows:
‘
The
magistrate had a contract appointment and was implicated in a pending
fraud matter and arrest on those charges was imminent,
and the Chief
Magistrate thought it prudent to terminate his contract with
immediate effect to save embarrassment to the Judiciary.’
[4]
The learned senior magistrate referred us to
S v Lapping
1998
(1) SACR 409
(WLD). Cloete J, with whom Marais J, concurred
said the following at pp 415 i - 416 b of that judgment:
‘…
It
would appear from this passage that the Full Bench of the Transvaal
recognized the possibility that, in theory, illness of a
magistrate
for a considerable period could, depending on the facts, justify an
order that proceedings be commenced
de
novo
before
another magistrate. If in theory, illness of a magistrate for a
considerable period could, depending on the facts,
justify an order
that a trial commence
de
novo
before another magistrate, then, on a parity of reasoning, such an
order would be justified if delay for a considerable period
could
result from the fact that the magistrate hearing the matter has been
suspended. In each case, the incapacity of the
magistrate to
continue with the trial is total, albeit not necessarily permanent;
and such cases fall to be distinguished from
a case where a
magistrate has been transferred because, in such a case, as was
pointed out in
Tlailane’s
case
at 111
in
fine,
the
necessary administrative arrangements can easily be effected in terms
of
ss 9(1)(d)
and
9
(4) of the
Magistrates’ Courts Act 32 of
1944
.’
[5]
The same reasoning in my view applies to a matter such as the present
where a presiding
magistrate’s ‘contract appointment’
had been terminated due to his alleged implication in criminal
activity.
I do not express any view on the validity of the
termination of the presiding magistrate’s contract. The
presiding
magistrate is obviously totally incapable of continuing
with the trial unless and until the termination of his contract is
set
aside. It cannot be assumed that such will ultimately
happen nor can it be assumed that the presiding magistrate will
remain
incapacitated from continuing with the trial.
[6]
I am accordingly of the view that the High Court has the power to
grant an order that
the proceedings in this instance commence
de
novo
before another magistrate. The relative advantages and
disadvantages of a postponement as opposed to a trial
de novo
ought now be considered. See:
S v Lapping
(supra)
at pp 416 e – 417 a.
[7]
Apposite to the facts of this matter is the following
dictum
of
Cloete J in
S v Lapping
at p 416 h – i
‘…
in
the present matter, the only alternative to an order directing a new
trial would be to postpone the trial indefinitely in the
hope that
the trial magistrate will ever be able to do so. Speculation in
this regards will involve
inter
alia
prejudging the result of her pending criminal trial which has not yet
commenced. If convicted, she may appeal. In the
meantime
the present matter, which commenced more than seven months ago, could
not proceed.’
[8]
The accused is on bail. Having regard to the record of the
proceedings in the
court a quo – the state called only two
witnesses, the accused testified and wished to call one witness –
it appears
that a trial
de novo
could be commenced and
finalized in a relatively short period of time. I am
accordingly of the view that the relative
advantages and
disadvantages of a trial
de novo
outweighs those of an
indefinite postponement.
[9]
In the result, the following order is made:
The
proceedings are set aside to enable the Director of Public
Prosecutions – should he or she so decide – to prosecute
the accused
de novo
before another magistrate.
WEPENER J
I
agree with my brother Meyer, J.
PA MEYER
JUDGE OF THE HIGH COURT
WL WEPENER
JUDGE OF THE HIGH COURT
19 May 2011