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[2015] ZAGPPHC 193
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S v Ngcobo (A186/15) [2015] ZAGPPHC 193 (1 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 1 April 2015
Case No: A186/2015
Not reportable
Not of interest to
other judges
Magistrate
Case No: 183/2014
High Court Ref No:
746/2014
THE STATE V POPPY
G NGCOBO / BENSON BHUDA
REVIEW JUDGMENT
PRELLER. J
The
Magistrate of Delmas forwarded the proceedings in this case to the
Registrar with a request that same be reviewed and set aside
and
returned to be heard
de
novo
before
another Magistrate.
The proceedings
arise from the opposed return day of a provisional protection order
in terms of the
Domestic Violence Act 116 of 1998
. The problem arose
when the Magistrate concerned reserved her judgment after the
completion of the proceedings but was suspended
pending
investigations before it could be delivered.
As pointed out by
the Director of Public Prosecutions these were not criminal
proceedings which would be subject to a review in
terms of section
302 of the Criminal Procedure Act. There was no indication when the
investigation against the Magistrate will
be finalised and when she
would be able to deliver her judgment, if ever. As correctly pointed
out by the Magistrate this resulted
in an injustice which has to be
rectified.
Section 16 of Act
116 of 1998 provides:
“
The
provisions in respect of appeal and review contemplated in the
Magistrates Court Act 1944 and the Supreme Court Act 59 of 1959
apply
to any proceedings in terms of this Act.”
The Supreme Court
Act of 1959 has been replaced by the Superior Court Act 10 of 2013
which provides in section 21(1 )(b) that this
court has jurisdiction
over all persons being in and in relations to all causes arising and
offences triable within its area of
jurisdiction and has the power to
review the proceedings of all such courts. The magistrate has in my
view correctly pointed out
that even though this matter does not fall
within the normal review powers of this court the court should in the
exercise of its
inherent powers do what is necessary to ensure that
justice is done.
The following order
is made:
The
proceedings before the magistrate are set aside and the matter is
referred back to the magistrate for trial
de
novo
before
another magistrate.
F
G PRELLER
JUDGE
OF THE HIGH COURT
I agree
H
J FABRICIUS
JUDGE
OF THE HIGH COURT
It is so ordered