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[2016] ZAGPPHC 100
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S v Mongwe (A122/2016) [2016] ZAGPPHC 100 (1 March 2016)
THE
JUDICIARY
REPUBLIC
OF SOUTH AFRICA
A122/2016
REVIEW CASE NO. MR
3/2016/PCL
A QUO
CASE
NO: A767/14
HIGH COURT REF NO:
12/2016
1/3/2016
Not reportable
Not of interest to other
judges
Revised
In the matter between:
THE STATE
And
GOFREY ZWELAKHE
MONGWE ACCUSED
SPECIAL REVIEW
JUDGMENT
MAVUNDLA J.
[1] This matter was
referred to this Court by the Acting Senior Magistrate of the
Regional Division of Mpumalanga held at Nkomazi/
Tonga on special
review in terms
1
of section 304 (4) of Act
51of 1977, requesting that the proceedings be set aside and the trial
of the accused commence
de nova
because the matter was part
heard and the presiding officer has since passed on.
[2] The office of the
Director of Public Prosecutions, at the request of the Court, has
favoured us with its opinion, for which
we are indebted. The office
of the OPP referred to the matter
S v Stoffels and 11 Similar
Cases
2004 (1) SACR 176(C)
and
S v
Skhosana and Others
2015 (1) SACR 526(GJ)
and opined that the
matter should be
referred back for trial
de nova
before another magistrate without an order of this
Court setting the earlier proceedings aside.
[3] In the
S v
Stoffels and 11Similar Cases
matter
(supra )
the Court
held as follows:
"[3]
Section 118
of
the
Criminal Procedure Act 51 of 1977
provides that if the presiding
officer 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 presiding
officer of the same court.
[4] Where a magistrate
dies or has become incapacitated or where he or she has been
dismissed or has resigned, the part-heard proceedings
before him or
her are aborted and therefore a nullity. The same applies where the
magistrate has recused himself or herself. The
trial may then
commence
de nova
before another magistrate without an order of
the High Court setting the earlier proceedings aside. See
R v
Mhlanga
1959 (2) SA 220
(T);
S v De Koker
1978 (1) SA 659
(O);
S v Molowa
1998 {2) SCAR 422 (O) and
S v Pole/a
2002
(2) SACR 734
(NC)."
[4] In the matter of S v
Skhosana
2015 (1) SACR 529
the Court cited with approval some of the
authorities referred to supra, in particular
S v De Koker (supra)
and
R v Mhlanga (supra)
and held that where the matter is
part heard before a magistrate who becomes unavailable on account of
resignation, or death such
proceedings become a nullity and should be
commenced
de nova
without the necessity of the High Court to
order as such.
[5]
In casu,
the
accused had already pleaded not guilty to the charge of armed
robbery. The State called some witnesses, who were cross examined
on
behalf of the accused who was
2
dully legally
represented. The matter was postponed several occasions until the
presiding officer past on.
[6] In the premises, I
make the following order:
1. That the proceedings
are a nullity and must be commenced
de novo
before another
magistrate.
__________________
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
I agree
__________________
M.W. MSIMEKI
JUDGE OF THE HIGH COURT