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2023
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[2023] ZAFSHC 184
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S v Moreki (R12/2023) [2023] ZAFSHC 184 (5 May 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No.
R12/2023
Magistrate’s
Court No. 03/2023
In the matter between:
THE STATE
and
NALEDI GLORIA MOREKI
CORAM
:
MOLITSOANE,
J
et
GUSHA, AJ
JUDGMENT
BY:
GUSHA,
AJ
DELIVERED
ON
:
05
May 2023
[1]
The accused is charged with theft in the
Jagersfontein Magistrate’s Court. On the 2
nd
February 2022 trial proceedings commenced before Magistrate Dyeyi.
[2]
On the aforesaid date, the accused pleaded
not guilty to the charge preferred and the State adduced the evidence
of one witness
and the matter was remanded to the 23
rd
February 2022 for further trial.
[3]
Tragically, on the 6
th
February 2022, the Honourable
Magistrate was involved in a motor vehicle accident. She sustained
severe injuries which left her
incapacitated to resume her official
duties.
[4]
It is against this heart-rending backdrop that Ms Mda, the current
Magistrate at Jagersfontein
Magistrate’s court, placed this
matter before us on special review, and requests that the proceedings
be set aside and ordered
to start
de novo
before another
presiding officer.
[5]
There is no provision in the Criminal Procedure Act,51 of 1977(the
Act) which empowers
the High Court to set aside the proceedings in
the lower court in circumstances where the presiding officer becomes
incapacitated
due to ill health. Against this backdrop it has to be
borne in mind that an accused person who has pleaded to a charge
other than
the lack of jurisdiction or an accused on whose behalf a
plea of not guilty has been entered by the court is entitled to a
verdict.
[1]
The limitation to
this entitlement, however, is contained in s118 of the Act. In
S
v Mayisa
[2]
the court held as follows:
“
Wanneer
ʼn beskuldigde eers gepleit het is hy geregtig om te eis dat hy
vrygelaat of skuldig bevind word deur die geregtelike
beampte voor
wie die verhoor in aanvang geneem het. Die enigste beperking op
hierdie beginsel is dat indien die geregtelike beampte
voor wie die
beskuldigde onskuldig gepleit het om enige rede nie beskikbaar is om
die verhoor voort te sit nie en daar geen getuienis
aangevoer is nie,
die verhoor voor enige geregtelike beampte van dieselfde hof
voortgesit kan word. Myns insiens berus hierdie
siening op ʼn
korrekte uitleg van art 106(4) gelees met art 118.”
[6]
The aforesaid provision does not avail the accused in this case as
same can only find
application where ‘
no
evidence has been adduced
[3]
.In
this case the Honourable Magistrate became incapacitated after the
evidence of the first state witness was led.
[7]
The issue before us therefore, is whether this is a case where the
interests of justice
would require that we exercise our inherent
jurisdiction and set aside these proceedings.
[8]
It is settled that where evidence has been adduced and before
conviction and the presiding
officer becomes unavailable due to
death, retirement, discharge, resignation, or other incapacity, the
trial may proceed
de
novo
before
another presiding officer, should the interests of justice so
demand
[4]
.
[9]
Accordingly, having regard to the time the presiding officer has been
incapacitated,
it cannot be said that she will recuperate soon in
order to finalize these proceedings. We are of the considered view
that the
interests of justice require that we exercise our inherent
jurisdiction and set aside these proceedings.
[10]
We agree with the request by Ms Mda and thank her for her
comprehensive report.
[11]
Resultantly, we make the following order:
ORDER
11.1.
The part-heard trial before Ms Dyeyi is set
aside.
11.2.
The proceedings are to commence
de
novo
before another Magistrate of the
same court should the Prosecuting Authority so determine.
_______________
NG
GUSHA, AJ
________________
PE
MOLITSOANE, J
[1]
See section 106(4) of the Criminal Procedure Act, Act 51 of 1977.
[2]
1983(4) SA 242 (T) at 247G-H.
[3]
Section 118 of the Act provides that; “
If
the judge, regional magistrate or magistrate before whom an accused
at a summary trial has pleaded not guilty is for any reason
not
available to continue with the trial and no evidence has been
adduced yet, the trial may be continued before any other judge,
regional magistrate or magistrate of the same court.”
[4]
S
v Gema and Another (CA&R 4/2022)
[2022] ZANCHC 5
,
2023 (1) SACR
304
(NCK) (31 January 2022) see also S v Lapping
1998 (1) SACR 409
(W).