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2021
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[2021] ZALMPPHC 89
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Rakimana v S (REV27/2021) [2021] ZALMPPHC 89 (28 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
REV27/2021
REPORTABLE:
YES
OF INTEREST TO OTHER
JUDGES:
YES
REVISED.
28/04/2021
In the matter between:
KAGISO RAKIMANA
And
THE STATE
REVIEW JUDGMENT
Summary
:
Special Review- Criminal procedure Act, 1977- Quaere whether a
retired Magistrate ‘available’ to conclude unterminated
trial he/she is seized of prior to retirement- whether proceeding’s
should be declared a nullity and start
de
novo
before another presiding officer-
expeditious commencement of and speedy conclusion of trial is a
pinnacle of fairness of trial
within the purview of S.35 (3) (d) of
the Constitution- S. 9 (7) (a) of the Magistrate’s court Act
1944 provides for continuity
of officers ‘unavailable’ to
dispose of unterminated trial- once the accused has pleaded to a
charge and evidence led,
except if it is absolutely impossible to
dispose of the matter, the accused is entitled to acquittal or
conviction -
in casu,
presiding officer not permanently debilitated to conclude trial still
pending – S. 118 of Act 51 of 1977, and interests of
justice
finds application.
MG
PHATUDI J:
[1]
This matter came before us on special review at the instance of the
Head of Magisterial
District of Molemole, Mr M.J Ramothopo. The facts
giving rise to the enquiry are briefly set out hereunder.
1.1 The
accused was charged in the Magistrate Court for the District of
Molemole, held at Morobeng of 2 counts
of theft, and the alternative
counts of forgery, and uttering. (Case no. C314/2014).
1.2
The trial proceedings against the accused commenced in earnest as
early as 2014. The case was, however, punctuated
by several
postponements albeit for a variety of reasons not relevant to this
enquiry. The interruptions were from both the side
of the state and
in some, instances, due to the accused’s own default. These
included, inter alia, disruptions occasioned
by hard alert Level 5
National Lockdown
[1]
, Covid-19
global pandemic
1.3 It
appears from the record provided by the learned Magistrate who
referred this matter on special review that
the accused, who was
legally represented by attorney Mr Papole, pleaded not guilty in
respect of all four counts, and in the same
vein, exercised his right
to remain silent. The plea was tendered before the Magistrate, Mr M.D
Maluleke, who then was the Presiding
Officer in the trial court on 19
July 2016.
[2]
The record also reveals that several witnesses had already testified
before the learned
Magistrate Mr Maluleke, and on the last hearing
date on 18 May 2020, the proceedings, were, once again, postponed to
26 September
2020, even though the record erroneously referred to 26
September 2018 (Bundle, P489, Record).
[3]
Mr Ramothopo, wrote to inform this court that the trial was
re-enrolled for further
evidence on 02 February 2021.
[4]
Prior to the resumption of trial on 02 February 2021, Mr.Ramothopo
intimated that
he invited the retired Magistrate Mr. Maluleke, to
resume trial, but the latter allegedly became reluctant to proceed to
trial
due to an email penned by Ms. Busi Nkosi, the Senior
Magistrate, dated 14 August 2020.
[5]
I quote an extract from the contents thereof.
“
I
discussed the issue of your part heard matters with Chief Magistrate
and the conclusion was that the matters (sic) to start
de
novo
as your appointment as a
Magistrate ceased on 31 July 2021”
[6]
It was the contents of this email as addressed to the retired
Magistrate Mr. Maluleke,
that gave rise to the present review
proceedings.
[7]
A perusal of the record, (consisting of 5 securely bound Bundles of
488 paginated
pages) reveals that the trial was overly protracted.
The state called 5 witnesses, with Warrant Officer Mashudu David
Tshisikawe
being the last to testify on 31 July 2018. The latter
retired from the SAPS’s employment service. Furthermore, the
state
has not yet closed its case.
THE
ISSUE:
[8]
At issue in the present enquiry is whether or not should the
unterminated proceedings
be set aside as a nullity and a trial
de
novo
be commenced with?
THE
APPROACH:
[9]
The starting point, in my view, should be the constitutional
imperatives laid down
in S. 35 (3) (d) of the Constitution.
[2]
(RSA) which provides that:-
SECTION 35 (3):
“
Every
accused person has a right to a fair trial, which includes the right—
(a)------------------------
(b)------------------------
(c)
------------------------
(d)
to have trial begin and conclude without unreasonable delay.”
[10]
The commencement of and a speedy conclusion of the trial is in terms
of S.35 (3) (d) the pinnacle
of fairness in every criminal
proceedings.
[11]
The aforementioned proposition stems from the premise that an accused
person is constitutionally
entitled to a speedy ‘conclusion’
of the trial without ‘unreasonable delay ‘in order to
enjoy a fair trial.
Absent the fulfillment of the right enshrined in
S 35 (3) (d), I am unable to appreciate how fairness of the trial can
possibly
be achieved.
[12]
Furthermore, an accused who pleads to a charge, except for raising a
plea ousting the court’s
substantive jurisdiction, is in
appropriate instances, entitled to a return of verdict. This is, of
course so, where there are
exceptions otherwise provided for by the
Criminal Procedure Act or any other law in particular. There are,
however, generally exceptions
to the above stated principle.
[3]
.
Each case will naturally depend on own merits.
[13]
The provisions of S.106 (4), properly interpreted import the meaning
that save for as stated
above, (Para: [12]) an accused who has
already pleaded to a charge, such as in the present instance, may
demand an acquittal or
conviction. This is in line with the common
law principle that trial proceedings has to be commenced with and be
finalized as expeditiously
as possible. This time celebrated
principle is in our modern times, vindicated by S.35 (3) (d) of the
Constitution
[4]
.
[14]
The foregoing observation is, as already shown, subject to the
exception that where the accused
has pleaded the court’s lack
of jurisdiction, he may not acquire the legal benefit of the said
principle as this is simply
an interlocutory plea where the guilt or
innocence of the accused does not arise at this stage of the
proceedings.
[15]
In the instant case the issue is whether or not the presiding officer
who prior to his retirement
and seized of the matter is ‘available’
to finalize the trial pending. In other words, does the fact of the
Magistrate’s
retirement legally preclude him from brining the
trial to a conclusion?
[16]
The view I take of the issue is that, the fact that the accused has
already pleaded to the charges,
and that extensive evidence has also
been led, to that extent, he should be entitled in terms of the
provisions of S.106 (4) read
with S118 of the Act, to a verdict.
[17]
The only exception to the aforegoing observation is where the
presiding officer before whom proceedings
had commenced, was
‘unavailable,’ and no evidence adduced, in which event,
the matter could be resumed before another
officer of the same
court
[5]
. But, in the present
instance, however extensive evidence had been led by several
witnesses for the prosecution, before the same
magistrate, Mr.
Maluleke.
IS
THE SAME PRESIDING OFFICER AVAILABLE?
[18]
The question whether the judicial officer before whom proceedings had
commenced and sized of
the matter is available is a question of fact
depending invariably on the circumstances and merits of each case. It
is common cause
that Mr Maluleke had since retired from active
service as a Magistrate. His retirement took effect whilst the trial
before him
was not yet finalized, and even more so, that the state
has not yet closed its case, nor the accused elected either to
testify
in his defence, or chose to remain silent or even close his
case.
LEGAL
FRAMEWORK:
[19]
The provisions of S 9 (7) (a) of the Magistrate’s Court Act 32
of 1994 as amended
[6]
, is the
relevant platform regulating the vacancy of a presiding officer, who
was otherwise seized of a pending matter, before the
vacancy or
reason for his/her unavailability had arisen. The relevant section
provides that:-
“
A
magistrate appointed in terms of sub-section (1) who presided in
criminal proceedings in which a plea was recorded in accordance
with
section 106 of the Criminal Procedure Act (51 of 1977), shall,
notwithstanding his/her subsequent vacation of the office of
magistrate at any stage, dispose of those proceedings and, for such
purpose, shall continue to hold such office in respect of any
period
during which he or she is necessarily engaged in connection with the
disposal of those proceedings”
19.1 What S9 (7)
(a) and (b) entail, among other things, is the following;-
(a)
There must have been a plea recorded; and
(b)
The plea recorded and evidence led before a magistrate who
participated in the proceedings before whom
the accused pleaded in
accordance with S.106 of the Act; and
(c)
The proceedings must not have been finally disposed of when the
tenure of the officer concerned
as a magistrate became vacant.
19.2 Upon
establishment of the above jurisdictional factors, the outgone
magistrate shall notwithstanding his/her subsequent
vacation of the
office of magistrate at any time, (1) bring to a conclusion those
proceedings at the court where he/she exercised
jurisdiction prior to
departure from or at any agreed court and, (2) shall continue to hold
office in respect of the matter during
which he/she was necessarily
engaged in connection with the disposal of those proceedings in which
the officer participated, (3)
and which proceedings were not disposed
of.
19.3
The foregoing exemptions also apply to an application for leave to
appeal in respect of such proceedings
[7]
.
[20]
The weight of authority I have come across, it would seem to me to
favour the view that once
an accused has pleaded to a charge, except
where specifically provided for in the Act, or any other law, or
where it is absolutely
impossible to finalise the pending trial, for
instance, on account of death or justified instances of recusal of
the presiding
officer,
he/she shall be entitled to a verdict of
either guilty or not guilty by the judicial officer who commenced the
trial from origin.
(Own emphasis)
See, S
v Gwala & Others,
[8]
[21]
Applying the foregoing principles to the facts in the instant case, I
find nothing that debars
Mr. Maluleke to resume the trial to its
conclusion regard being had to the provisions of S9 (7) (a) of the
said Act. I may add
further that the fact that Mr Maluleke went on
retirement after the commencement of trial, that alone does not
disqualify him from
properly resuming the unterminated hearing in the
district where proceedings begun or in other agreed district.
[22]
In order to give effect to the above proposition, the Chief
Magistrate or head of the district
court concerned, may provide the
necessary support to assist the officer in terms of S.9 (7) (a) to
exercise his/her judicial powers
in that court.
[23]
That said, it is accordingly not competent for another Magistrate to
hear the pending case
de novo
merely because the officer
before whom the trial was commenced, is ‘unavailable’ due
to being pensioned off from active
service as a Magistrate.
[24]
Similarly, it is only in such special circumstances as death,
recusal, dismissal, resignation
or even mental aberration that can
render resumption of trial by the affected officer impossible to
proceed with. In such event,
the proceedings become a nullity and the
trial could be heard
de novo
before another judicial officer.
The present review does not, in my view, fall within the bracket of
one such ill-fated proceedings.
The officer seized of the matter
cannot be said to be ‘unavailable’ or debilitated in the
context of the special circumstances
referred to
See
also, S v Mahlangu
[9]
[25]
There is furthermore yet another special statutory consideration to
give credence to the above
proposition.
S.118 of the same Act
reads 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’.
[26]
In the instant case an examination of the record is replete with
information that evince nothing
to suggest that Mr. Maluleke, the
Officer concerned, is absolutely ‘unavailable’ or that he
is in anyway debilitated
to inhibit his resumption of trial to a
speedy conclusion.
[27]
In answer to the question I posed in paragraph [18] above, I am of
the view that the presiding
officer Mr. Maluleke should be available
to resume the unterminated proceedings. There is thus no need to have
such unterminated
proceedings set aside and permitting the trial to
start
de novo
. To do so would offend the accused’s right
to a speedy commencement of and conclusion of his trial envisaged in
S. 35 (3)
(d) of the Constitution. Not only that, the accused is,
moreover, entitled to an acquittal or conviction in accordance with
S.106
(4) of the Act, taking into account also the interests of
justice.
[28]
In the light of these considerations, where the unavailability of the
judicial officer who has
heard unterminated proceedings is absolute
due to event of death, dismissal or discharge from employment,
recusal, mental derangement,
resignation and such non-availability
becoming
absolute
, such that even the invocation of S. 9 (7)
(a) of the Act would not redeem the situation, I am firm in my view
that the relevant
proceedings should be set aside and start
de
novo
.
In casu,
S.9 (7) (a) is a mechanism that may be
invoked in the circumstances to restore the status
quo ante
.
[29]
In a situation such as this, does it really mean that each time when
this kind of a predicament
arises in our magistrate’s courts,
the High Court’s intervention would be required to review and
set aside or confirm
the resumption of trials in the circumstances
alluded to?
The
answer, in my view, is a definite no.
[29]
The head of the Magistrate’s court concerned is obliged to
apply the “
unavailability
or
non-
availability
”
test to decide whether or not to declare the unterminated proceedings
a nullity and the trial to start afresh. The provisions
of S.9 (7)
(a) should always be borne in mind when the decision is made. I find
no justification that a High Court order should
always be sought in
order to avoid unnecessary delay in the the speedy finalization of
the trial. See, S v POLELO
[10]
See also, S v Hanekom (469/2003)
[2003] ZAWCHC 67
(03.12.2003) para:
[17], per Yekiso, J
[30]
For all the reasons provided, and in order to ensure that the
accused’s right to a speedy
finalization are not encroached
upon, it is directed that Mr Maluleke be advised of this judgment on
the matter, and he be administratively
supported with all available
resources to resume the trial to conclusion immediately.
For
that, I make the following order.
ORDER:
(a)
The trial proceedings pending under
case no: 314/2014 Molemole District, held at Morobeng be resumed,
before Magistrate Mr. M.D
Maluleke with immediate effect.
(b)
The Registrar of this court is
directed to forward a copy of this judgment to the chief Magistrate,
Limpopo and to all heads of
Magistrate’s court, Limpopo
Province.
MG
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
I
agree
E.M.
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
DATE
ISSUED: 28 APRIL 2021
[1]
Record,
P120-124- (Bundles of record not indexed per volumes)
[2]
The
Constitution Act 108 of 1996, as amended
[3]
S.
106 (4) Act 51
of 1977, as amended. Exceptions are under S.77 (6) in
cases of state president’s patient or where there has been a
separation
of trials in terms of S.157 (2) of the Act.
[4]
Bothma
v Els & Others 2010 (2)SA 622 (CC)
[5]
S
v Mayisa 1983 (4) SA 241 (TPD).
[6]
The
relevant amendment was introduced by the Magistrate Act 90 of 1993
read with S.10 of Act 32 of 1944, as amended.
[7]
S.
9 (7) (a) (i) of the Magistrate’s Court Act 1944.
[8]
1969
(2) 227 [N.P.D.] at 230 D-E.
[9]
1993
(1) SACR 183
(B) at 186
[10]
2000
(2) SACR 734
(NC) at 736 C-D
See
Du toit et al “commentary and Criminal Procedure Act at 15-37.