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[2022] ZAFSHC 107
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S v Mokoena (16/2022; A 1115/2020) [2022] ZAFSHC 107 (4 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
no: R 16/2022
Magistrate
court Case: A 1115/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
STATE
and
THABISO
ELVIS MOKOENA
CORAM:
LOUBSER, J et MOLITSOANE, J
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
04 MAY 2022
[1]
This matter, together with another one under case number A864/2021
were sent on special
review under cover of a letter titled ‘
Reasons
in terms of section 304(4) Act 51/1977
.’This judgment is
only confined to the proceedings in case number A1115/2020.
[2]
The accused was arrested on 5 September 2020 and made his first
appearance before
court on 7 September 2020.He was charged with the
following crimes: crimen iniuria, assault with intent to do grievous
bodily harm
and malicious injury to property.
[3]
Following his first appearance he made further numerous appearances.
The record reveal
that it was only on 1 February 2022, about fifteen
months after his first appearance that charges were put to him to
which he pleaded
not guilty. The accused is not entirely innocent as
to the delay in these proceedings because at some stage two warrants
for his
arrest were authorized due to his non-attendance at court. It
appears that on 1 February 2022 evidence was led and the case became
a so called ‘part- heard’. After the matter was postponed
the case never proceeded as the presiding officer retired
from active
service and was and is still apparently ill, thus unable to finalise
these proceedings.
[4]
In the letter accompanying this case the Acting Senior Magistrate
says:
1.
“
The two above matters are part-heard before Additional
Magistrate, Kroonstad, Mr Viljoen. He has since retired effective
from 31
March 2022.
2.
The accused in the two matters are in custody.
3.
It was brought under my knowledge that immediately prior to
his retirement and even to date; he was and is still not well. It is
unknown as to when he will be medically fit to finalize his part-
heard matters.
4.
In light of the uncertainty alluded to in the preceding
paragraph and the continued detention of the accused in these
matters, I
request that the Judge on Review make the following
orders:
i.Set aside the entire
proceedings in these matters,
ii.Order that the
trials start de novo2, or
iii.Any other order
necessary under the circumstances.”
[5]
It is necessary at the onset to make the following remarks:
i.The original or
certified record of the proceedings was not sent together with this
review. Although this review is not brought
in terms of section 302
of the Criminal Procedure Act 51 of 1977, (the CPA) it is my
considered view that it is proper that the
original or a copy
certified by the clerk of the court be transmitted to the review
court as envisaged in section 303 of the CPA;
ii.The record of the
proceedings is incomplete. The transcribed record reveal that the
accused pleaded to the charges on 1 February
2022. It is not clear
from the record if any evidence was led. I am however tempted to
believe that the evidence was led having
regard to the cryptic notes
of the Honourable Magistrate on that day. And as a result the case
became part-heard. There is no record
of the proceedings for that
day. The following inscription appears on record which fuels my
temptation that the evidence was led:
“
Date: 1
February 2022
Acc. Pres.
Confirm ID
Dig Rec
14h00 Mr Mahanke
not feeling well.
Rem 17 February
2022
I/C
part Heard
Witnesses
Terrence Oliphant
Gountry
Nomembe O/W.”
[6]
Notwithstanding the incompleteness of the record I am of the view
that the interests
of justice demand that this court should deal with
this review as a matter of urgency. The record of the proceedings has
no bearing
on the reason for sending this matter on review. The
presiding officer seized with the matter is sick and it is unclear as
to when
he will be in a position to proceed with this case.
[7]
The accused in this matter is still in custody. The record reveal
s
that on 8 October 2021 the state successfully applied for the
cancellation of the bail of the accused following his failure to
appear
before court and he has been in custody since. It is thus
clear that failure to finalise this matter greatly prejudices the
accused.
The delay in finalising these proceedings negatively affect
his personal liberty and freedom.
[8]
The accused is entitled to a speedy trial. Section 35(3)(d) of the
Constitution entrenches
this right and provides as follows:
“
Every accused
person has a right to a fair trial, which includes the right to have
their trial begin and conclude without unreasonable
delay.”
[9]
Over and above the right to a speedy trial the accused is entitled to
a verdict once
he has been made to plead to these charges.
[10]
While from the letter of the Honourable Acting Senior Magistrate it
appears that the review is
brought in terms of section 304(4) of the
CPA, this cannot be correct. This section “makes provision for
the review of criminal
cases tried in a magistrate’s or
regional court, which are not subject to automatic review. The
essential elements of this
provision are that it involves (1) any
criminal case;(2) in which a magistrate has imposed a sentence; (3)
that is normally not
reviewable; and (4) that is ‘not in
accordance with justice
[1]
’”
[11]
Review in terms of section 304(4) thus takes place where the criminal
proceedings in the lower
court have been finalised and a sentence
imposed. Section 304A is also not applicable as the provision is only
applicable after
conviction but before sentence. In the case before
us, the accused has neither been convicted nor sentenced. The High
Court has,
however, an inherent jurisdiction to review the
proceedings of the lower court and it is on this basis that this
matter will be
dealt with.
[12]
In
S v
Skhosana and Others
[2]
several matters were sent for special review to the High Court as the
matters could not be finalised due to the unavailability
of the
presiding officer who was involved in a near fatal accident. Some of
the cases were partly heard with the accused having
pleaded but not
yet convicted. Having dealt with the case law in circumstances where
the accused had not been convicted, the court
ultimately held that
the unavailability of the presiding officer rendered the earlier
proceedings a nullity
ex
lege
.
The court further held that the proceedings should commence de novo
before another magistrate and in such a case there was no
need for
intervention of the High Court.
[13]
In
Skhosana
[3]
the court said:
“
Our courts
have held on several occasions that the prolonged incapacity of a
presiding officer may warrant the setting aside of
the proceedings
before such presiding officer so that, in the interests of justice, a
trial de novo can commence before another
presiding officer. Each
case will depend upon its own circumstances (
S v Makoni and Others
197(1) SA 169(R);
S v Chigumbu
1980(1) SA 927(Z); and
S v
Tlailane Another
1982(4) SA 107 at 110H-111A.”
[14]
It is apparent that the presiding officer in this case is sick. It is
not clear when he will
be healthy again to proceed with this matter.
The delay in finalising the case infringes the constitutionally
entrenched right
of the accused to a speedy trial. It is in the
interests of justice that these proceedings should be set aside. I
accordingly propose
this order:
ORDER
1.
The proceedings in Magistrate Court: Kroonstad case number A1115/2020
are hereby reviewed and set
aside;
2.
The accused is to be released from custody immediately.
3.
The case is to be referred to the Director of Public Prosecutions to
decide whether to institute
fresh proceedings against the accused or
not.
P.E.
MOLITSOANE, J
I
concur and it is so ordered
P.
J. LOUBSER, J
[1]
Commentary on the
Criminal Procedure Act, De
Toit et al 30-22.
[2]
(41/2193/2008[2014] ZAGPJHC 223- (18 September 2014).
[3]
Supra para [15].