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[2015] ZAGPPHC 84
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S v Mkhari (A86/15) [2015] ZAGPPHC 84 (16 February 2015)
IN
THE GAUTENG DIVISION, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case number: A86/15
Date: 19 February
2015
Magistrate:
Nelspruit
Review Case no:
2036/12
Magistrate’s
Serial no: SP44/14
High Court Ref no:
848/14
THE STATE
VS
SAMUEL MKHARI
REVIEW JUDGMENT
MSIMEKI. J
[1] This matter
serves before me on special review.
[2] The accused, not
legally represented, appeared before magistrate Sambo in Nelspruit
charged with theft of corrugated irons valued
at R2 000.00.
[3] He initially
pleaded guilty to the charge. The magistrate, in terms of section 113
of the Criminal Procedure Act 51 of 1977
(CPA), altered the plea to
one of not guilty once it became clear to him that the accused was
pleading not guilty.
[4] The trial
proceeded before magistrate Sambo. The state closed its case and the
accused testified and called a witness. The matter
was then postponed
to 12 December 2012 to enable the accused to bring his other witness.
[5] The matter has
since been on the roll. In the meantime the accused failed to attend
court and a warrant for his arrest was authorised
and issued. The
accused was arrested and later released on bail.
[6] It appears that
Mr Sambo had entered into a contract of service with the department
of justice and that the contract has since
expired. Mr Sambo,
evidently, has failed to finalise the matter and it is not very clear
why this has happened. One can only assume
that Mr Sambo is
unobtainable and unavailable for whatever reasons which have not been
disclosed to the court.
[7] Upon receipt of
the matter I requested information from the magistrate office. This
became necessary as it was not clear why
the matter was before us.
The Senior magistrate responded to my query dated 24 December 2014
and advised that:
“
Mr
Sambo, the magistrate who had been attending to the matter was a
contract magistrate whose contract has expired”.
It appears Mr Sambo
is no longer available to complete the case that he started.
[8] The question
which needs an answer is whether the matter can proceed before
another magistrate. The simple answer is yes.
[9]
In
Punshon
v Wise, N.O. and Others
1948 (1) SA 81
(NPD),
the
magistrate had written out, on a paper, the sentences which he
proposed passing on the accused. The defence attorney, before
the
Crown had closed its case, came across the paper when going through
the record. This prompted the defence to ask the magistrate
to recuse
himself from the case. The magistrate acceded to the application and
became
functus
officio.
The
magistrate became unable to enter a verdict. The proceedings became a
nullity.
[10]
In
Zackey
v Magistrate of Benoni
1957 (3) SA 12
(T)
the
magistrate was asked to recuse himself from the case after
inadmissible evidence had been expunged from the record. The accused,
subsequently were arraigned on an identical charge but they refused
to plead on the ground that they had already pleaded to the
charge
and no verdict had been recorded in terms of section 169 (6) of Act
56 of 1955 (the old
Criminal Procedure Act). In
an application for a
declaratory order and an interdict restraining the magistrate from
trying them, the court held that an accused
who successfully asked
for recusation was not entitled to claim a verdict as the earlier
proceedings became a nullity.
[11]
In
S
v Polelo
2000 (2) SACR 734
(NKA)
the
magistrate who had a partly heard matter to attend to resigned before
the matter was finalised. The magistrate who inherited
the matter
then sent it on special review so that the matter be heard de novo. I
must point out that the state had closed its case
when the magistrate
resigned. The defence, however, had not yet placed its case before
the magistrate. The court held that where
a presiding magistrate
withdraws from a case for one or other reason the case must be
commenced
de
novo
before
another presiding officer and that needed no declaration by the court
that the previous trial be declared a nullity and that
the matter be
heard
de
novo.
[12] The facts of
the current matter are no different from those of the three cases
above. The need, accordingly, does not arise
for any court to declare
the previous trial to be a nullity and ordering the matter to be
tried before another judicial officer:
There
is therefore no difference between a magistrate who recuses himself
and a magistrate who resigns and refuses to complete the
case.
(See
S v Suliman
1969 (2) SA 385
(A) at 390H-391 A).
The same principle,
in my view, applies to a case where the contract of the magistrate,
such as in this case, has expired.
[13]
It is not necessary to make any order in the current case because it
is perfectly within the state’s right to charge
the accused
de
novo
before
another magistrate.
M. W. MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
I agree
And it is so
ordered.
N.M.MAVUNDLA
JUDGE OF THE
GAUTENG DIVISION
PRETORIA