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[2016] ZAGPPHC 399
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S v Pretorius (A334/2016) [2016] ZAGPPHC 399 (24 May 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA).
DATE:
24/05/2016
CASE
NO.:A334/2016
Magistrates
Ref No: 8/2014
High court
ref no: 511/14
In the matter between:
The State
And
Johannes Cornelius
Pretorius
REVIEW
JUDGMENT
Maumela
J.
1.
This matter came before court as a special review. Before the
magistrates court for the district of Springs, sitting in Nigel,
the
accused; Johannes Cornelius Pretorius, who was legally represented,
was charged with Failure to Pay Maintenance, in contravention
of
section 31 of the Maintenance Act 1998: (Act No 99 of 1998)
"
Maintenance Act"
;.
2.
The accused was convicted and sentenced to 4 (four) months
imprisonment. The whole sentence was suspended for 5 (five) years
on
the following conditions:
2.1.
That the accused is not convicted of an offence of contravening
section 31
of the "
Maintenance Act"
;, which offence would
have been committed during the period of suspension.
2.2.
That the accused continues to pay maintenance on a monthly basis, at
an amount of R1500-00, in compliance with the order made
against him
on the
19th
of May 2010, and
2.3.
That the accused pays an additional amount of R200- 00 towards the
arrears accumulated in terms of
section 40
(1) of the "
Maintenance
Act"
;.
3.
Mr Pretorius's legal representative questioned the validity of the
above order. As a result, the magistrate who presided was
requested
to explain the order he made on the 7
th
of September 2010.
A need then arose for the record of proceedings before the magistrate
Springs to be transcribed. It was then
discovered that technical
problems prevented recording of the proceedings before the
magistrate. As a result the record of proceedings
before the
magistrate could not be retrieved. Various efforts to overcome the
technical problems and to obtain a record of the
proceedings in the
case came to naught.
4.
It also came to light that both the presiding magistrate, and the
accused's legal representative, destroyed their respective
notes on
the case. It was stated that on the 21st of May 2010, the parties in
the case before the magistrate entered into an agreement.
The
presiding magistrate could not recall whether or not that agreement
between the parties on the 21
st
of May 2010 was made an
order of the court. The fact that the record of proceedings could not
be retrieved is the reason why the
presiding magistrate sent this
matter on special review, with a request for the proceedings that
unfolded before him, to be set
aside.
5.
The
Magistrates' court is a creature of statute
[1]
.
It is a
court of record2
[2]
.
In
the event
where any of the decisions or orders
by a
Magistrates court came
i
nto
question, the record of proceedings becomes vital in order to assess
the
correctness
or otherwise thereof. The senior Magistrate under whom the presiding
officer serves is supportive of the application
for the setting
aside of
the proceedings.
6.
This court views that it is not possible for this matter to be taken
forward in any manner in the absence of the original, or
the
re-constructed record of the proceedings before the Magistrate. In
the result, the request for the record of the proceedings
before the
Magistrate Nigel to be set aside stands to be granted. The following
order is made:
ORDER.
The
record of proceedings of Nigel Magistrate's, case number 151/2010 is
ordered to be set aside.
_________________
T. A.
Maumela.
Judge of
the High Court of South Africa.
I agree.
__________________
T.J.
Raulinga
Judge of
the High Court of South Africa.
[1]
It
was
created through the enactment of the Magistrates Court Act 1944:
Act No 32
of 1944
[2]
See section 4 (1) of the Magistrates Court Act