About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 680
|
|
Diels v S (A520/16) [2016] ZAGPPHC 680 (8 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
A520/16
Reportable:
No
Of
interest to other judges: No
Revised.
HIGH COURT REF. NO.:69/16
MAGISTRATE'S CASE
NO.:377/2014
MAGISTRATE'S SERIAL NO.:
01/16
DATE:
8 August 2016
TWAN
DIELS
And
THE
STATE
REVIEW
JUDGMENT
MABUSE
J:
[1]
This matter came before me by way of a special
review in terms of s 304 of the Criminal Procedure Act 51 of 1977
("the CPA").
[2]
This review must be seen against the following
background. The accused in this matter, Mr. Twan Diels, appeared
before a magistrate
at Volksrust where he was charged with
contravention of s 17 of the Domestic Violence Act 106 of 1998 ("the
Domestic Violence Act"
;). When he appeared before the court on 4
December 2014, he pleaded guilty to the charge and was accordingly
convicted. Upon his
conviction, he was sentenced to 24 months'
imprisonment. The accused then applied for leave to appeal but his
application was turned
down by the magistrate. Leave to appeal
against his sentence was, however, granted on petition by the Gauteng
Division of the High
Court on 16 October 2015.
[3]
The accused then applied for bail pending appeal.
At the conclusion of the evidence, the magistrate reserved the
judgment. In the
meantime the magistrate received a letter from the
accused in which he had set out his dissatisfaction with the manner
in which
the case had been adjudicated upon by the magistrate.
Seemingly upon receipt of the said letter and without the accused
himself
having brought a substantive application in that regard the
magistrate, on his own, took a decision to recuse himself. The
magistrate
has now requested that the bail proceedings up to this
stage be set aside so that they may proceed
de
novo
before another magistrate.
[4]
Upon receipt of this file by this Court I was
dissatisfied with the manner in which the magistrate took a decision
of recusing himself
from the presented case. His conduct leaves much
to be desired. The magistrate should not have done so if there was
not before
him any substantive application for him to recuse himself
from the proceedings.
[5]
In view of the fact that the magistrate already
has taken a decision that he will not proceed with the matter and in
view furthermore
of the fact that it will serve no purpose to order
that he must rehear the matter, the bail proceedings should start
de
novo
before another magistrate. As will be
demonstrated by reference to authority, It is not necessary that the
part-heard proceedings
should be sent to the High Court for review in
order for them to be set aside. It is enough if one of the events
referred to below
has taken place.
[6]
In S v Stoffels and 11 Similar Offences 2004(1)
SA SACR 176 the full bench adopted the approach that the situation
where a magistrate
has recused himself from a case after evidence has
been adduced is akin to a situation where the magistrate has died or
become
incapacitated to continue with the case or has been dismissed
or has resigned. In such a case, the part-heard proceedings before
him are aborted and are therefore a nullity. The same applies to a
situation where the magistrate has recused himself from the
proceedings. The trial may then proceed
de
novo
before another magistrate.
[7]
Accordingly our law is that in the following
circumstances the part-heard proceedings before a magistrate or
presiding officer become
abortive and a nullity; where the
magistrate:
7.1.
dies;
7.2.
becomes incapacitated;
7.3.
has been dismissed;
7.4.
has resigned;
7.5.
has recused himself.
Where
any one of the events named in paragraph 7 above has taken place, the
part heard proceedings become automatically abortive
and a
nullity. Accordingly, and for that particular reason, no court order
is required to set such part-heard proceedings aside.
The proceedings
should start
de novo
before another magistrate. In my view,
this point is best illustrated by the case of R v Mhlanga 1959(2) SA
220(1). Here I wish
to quote copiously from the said authority:
"In my opinion
that point taken is not a good point In my opinion the relative
sub-section of the Code relied upon applies
if the court as then
constituted at the time of recording the plea, continues in existence
and retains jurisdiction until the time
is ripe to render a judgment
of acquittal or conviction. Many events may however occur after the
taking of the plea which may render
the proceedings abortive and
therefore a nullity because the court, as constituted at the plea
stage, has ceased to exist or the
presiding judicial officer has
ceased to have jurisdiction in the matter. Such events may include
the death of a magistrate, his
resignation or dismissal, his recusal
or his transfer out of the particular district. One can think of
other possibilities too,
but I think it is quite clear that the
magistrate only has jurisdiction in a particular district as long as
his appointment in
that district continues. The moment his
appointment there is terminated, his jurisdiction has also come to an
end When an event
such as transfer has taken place, the magistrate
has ceased to have jurisdiction in the court in which the plea was
taken and the
proceedings in the particular case therefore have
become abortive; they have logically become a nullity.”
[8]
Once one of the events as set out in paragraph 7
has taken place, it means that:
"1. It is
unnecessary to send the part-heard proceedings to the High Court so
that the High Court can review and set aside
the proceedings; an
order of the High Court to set aside the proceedings becomes
unnecessary and superfluous;
2. the accused may not
plead at his tis pendens;
3. finally the accused
in such a case may not demand that he be acquitted or convicted.”
[9]
Accordingly the following order is made:
1.
It
is hereby ordered that the accused's application for bail pending his
appeal should be heard afresh before another magistrate.
____________________
P.
M. MABUSE
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered.
____________________
W.R.C.
PRINSLOO
JUDGE
OF THE HIGH COURT
-oOo-