Summary of Judgment

1. Introduction

The matter concerned a special review before the High Court of South Africa, Free State Division, Bloemfontein. The proceedings arose from a part-heard criminal trial in the Kroonstad Magistrate’s Court.

The parties were the State as prosecutor and Lerato Itumeleng Nthoesane as the accused person. The review was placed before the High Court after the Acting Senior Magistrate of Kroonstad referred the matter for review, indicating that the presiding Additional Magistrate (Mr Viljoen) had become unavailable due to illness and subsequent retirement.

The procedural history reflected that the accused was arrested in September 2021, denied bail after a contested hearing, and remained in custody. The trial commenced on the merits on 31 January 2022, but was then repeatedly postponed due to the magistrate’s ill health, and ultimately could not be finalised because the magistrate retired on 31 March 2022.

The general subject matter of the dispute was whether, given the unavailability of the presiding magistrate in a part-heard trial and the accused’s continued detention, the High Court should intervene to set aside the incomplete proceedings and direct that the matter start de novo before another presiding officer, and on what jurisdictional basis this could occur.

2. Material Facts

The following material facts were treated as established on the record placed before the High Court and relied upon for purposes of the review.

The accused was arrested on 18 September 2021 after dark and first appeared in court on 20 September 2021. He was charged with housebreaking with intent to steal and theft, alternatively with a contravention of section 36 of the General Laws Amendment Act 62 of 1955 (possession of suspected stolen property without a reasonable explanation).

Soon after his first appearance, the accused applied for bail. Bail was refused after a full hearing. The record indicated that the accused had five previous convictions for theft, which the magistrate regarded as decisive in refusing bail. The accused remained in custody pending trial.

The trial on the merits commenced on 31 January 2022 before Additional Magistrate Viljoen. The accused pleaded not guilty to both the main charge and the alternative charge. No plea explanation was tendered.

The State led the evidence of a first witness, a female police official. Her evidence, as captured in the transcribed record, was that police officers encountered the accused in Kroonstad carrying various household items (including a television set, a heater, blankets, and other goods). The accused allegedly explained that he had been given these items by someone at a particular guesthouse.

According to the witness, the accused then took the police to the guesthouse, where no people were present and the police could not obtain further information that night. The matter was remanded for the State to call further witnesses.

No further evidence was heard. The case was remanded a further five times because the presiding magistrate was ill. The Acting Senior Magistrate reported that the magistrate retired on 31 March 2022, remained unwell, and it was unknown whether he would recover sufficiently to finalise part-heard matters. The accused had been in custody for almost eight months by the time the High Court considered the review.

3. Legal Issues

The central legal questions were whether the part-heard proceedings in the magistrates’ court should be treated as incapable of completion due to the presiding officer’s unavailability, and what procedural consequence followed from that unavailability, particularly whether the matter should commence de novo before another magistrate.

A further question concerned jurisdiction and procedural competence: the Acting Senior Magistrate had referred the matter as a special review purportedly in terms of section 304(4) of the Criminal Procedure Act 51 of 1977, and the High Court had to determine whether section 304(4) applied to an unfinished, part-heard trial and, if not, whether the High Court could nevertheless intervene through its inherent review jurisdiction over lower courts.

The dispute primarily involved the application of legal principles to established procedural facts, together with an evaluative assessment of the interests of justice in circumstances of delay and continued detention. The court also considered constitutional and statutory fair-trial protections relevant to delay and finalisation of criminal proceedings.

4. Court’s Reasoning

The High Court first addressed the jurisdictional basis for entertaining the matter as a review. It noted that section 304(4) of the Criminal Procedure Act 51 of 1977 concerns reviews in circumstances where proceedings in the lower court have been finalised and a sentence has been imposed. Because the trial in the magistrates’ court was part-heard and had not resulted in conviction or sentence, the court held that the matter could not proceed as a review under section 304(4), contrary to what had been suggested in the referral letter.

The court nevertheless held that it was empowered to intervene because the High Court has an inherent jurisdiction to review proceedings of lower courts. It therefore dealt with the matter on that basis, rather than under section 304(4).

Turning to the effect of the presiding officer’s unavailability, the court referred to authority establishing that a criminal trial becomes a nullity where the judicial officer becomes unavailable in the absolute sense, including through death, retirement, dismissal, resignation, or recusal. The court stated that, in such cases, there is no need for the High Court to “set aside” the proceedings as a prerequisite for continuation; the consequence is that the trial must commence de novo before another judicial officer.

On the facts, the presiding magistrate had retired and was reportedly ill, and it was uncertain whether he would recover sufficiently to return and complete the trial. The court acknowledged that retirement placed the magistrate in a category of unavailability recognised by the authorities. While the continued possibility of recuperation created some uncertainty as to whether the magistrate might again become available, the court treated the prospects as doubtful and emphasised the need for finality and fairness.

The court also took account of the accused’s position. It noted that the accused had been in custody for almost eight months and referred to statutory and constitutional protections. In particular, it referred to the entitlement in terms of section 106(4) of the Criminal Procedure Act 51 of 1977 that an accused is entitled to demand that he be acquitted or convicted on charges to which he has pleaded, and to the fair-trial right in section 35(3)(d) of the Constitution that an accused has the right to have the trial begin and conclude without unreasonable delay. The court observed that the delay was not attributable to any fault on the part of the accused.

In an evaluative assessment framed as being in the interests of justice, the court concluded that it was preferable to set aside the part-heard proceedings rather than postpone the case further in the hope that the retired and ill magistrate might return, which was uncertain. The court therefore directed that the matter should start afresh before a different presiding officer as soon as possible.

5. Outcome and Relief

The High Court reviewed and set aside the proceedings in the Kroonstad Magistrate’s Court under case number A864/2021.

It further ordered that the proceedings must commence de novo before another presiding officer as soon as possible.

No costs order was made in the judgment.

Cases Cited

S v Polelo 2000 (2) SACR 734 (NC)

S v Stoffels and 11 Similar Cases 2004 (1) SACR 176 (C)

S v De Koker 1978 (1) SA 659 (O)

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 304(4) and 106(4))

General Laws Amendment Act 62 of 1955 (section 36)

Constitution of the Republic of South Africa, 1996 (section 35(3)(d))

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that section 304(4) of the Criminal Procedure Act 51 of 1977 did not apply because the magistrates’ court proceedings were not finalised and no sentence had been imposed. The High Court nevertheless exercised its inherent review jurisdiction to intervene.

It held, with reference to authority, that where a presiding officer is unavailable in an absolute sense, including by reason of retirement, the proper consequence is that the part-heard proceedings cannot be completed and the matter must commence de novo before another judicial officer.

Given the accused’s prolonged pre-trial detention, the absence of fault on the accused’s part, and the constitutional and statutory concerns regarding unreasonable delay and finalisation of criminal proceedings, it was in the interests of justice to set aside the incomplete proceedings and direct that the matter be heard afresh before another magistrate as soon as possible.

LEGAL PRINCIPLES

A criminal trial becomes a nullity where the presiding judicial officer becomes unavailable in an absolute sense, including through retirement, and the matter must then commence de novo before another presiding officer.

Section 304(4) of the Criminal Procedure Act 51 of 1977 is directed at review proceedings after a lower-court matter has been finalised and sentence imposed; where proceedings are part-heard and no sentence has been imposed, the High Court may still intervene through its inherent review jurisdiction over lower courts.

In determining the appropriate course where proceedings have stalled, the court may consider the interests of justice, including the accused’s fair-trial right to have the trial begin and conclude without unreasonable delay under section 35(3)(d) of the Constitution, and the statutory entitlement in section 106(4) of the Criminal Procedure Act 51 of 1977 relating to finalisation after plea, particularly where the delay is not attributable to the accused and the accused remains in custody.