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[2015] ZAFSHC 191
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S v Thobalo (SHW25/2013) [2015] ZAFSHC 191 (8 October 2015)
IN
THE FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: SHW25/2013
Review
Case number: 181/15
In
the matter between:
THE
STATE
and
TSIETSI
DAVID THOBALO
CORAM:
MOLOI, et MOCUMIE, JJ
DELIVERED
ON:
08 OCTOBER 2015
REVIEW
JUDGMENT
MOLOI,
J
[1]
This
matter
purports to
be placed
before
me in terms
of
Section 304A of Act 51 of 1977
,
the
Criminal
Procedure
Act,
as
amended.
The acting Regional Magistrate C.F. Nekosie observed
as follows when referring the matter as Special Review:
''The
matter is referred in terms of section 304A of Act 51 of 1977 to the
Honourable Judge in charge of Review Cases for consideration.
The
accused is charged with rape, (contravention
of
section
Act 32 of
2007
) in the Regional court sitting at Wesselsbron. The
trial commenced on 13 March 2014 with Mr. J Human presiding over the
matter.
The matter could not be concluded and was remanded.
On
the following three remand dates the matter could not proceed for
various reasons. On 4 July 2014 and 11 July 2014 the matter
proceeded
despite the fact that the record of the previous proceedings of
13 March 2014 could not be traced. The matter was
remanded to 21 July
2014 for further trial.
On
the remand date the accused failed to be in attendance,
a
warrant for
his
arrest was authorized and his bail was forfeited. Mr. Human retired
at the end of October 2014 whilst the accused was still
at large.
The
accused was arrested and brought to court on
21 November 2014 and trial date arranged for
27 January
2015. Mr. Human was informed of the date but required the record to
be transcribed as he had disposed of all his notes
after his
retirement. The available records was transcribed but did not
include the evidence in chief of the complainant
as same was lost.
When Mr. Human was called upon to reconstruct the record and continue
with the trial he telephonically informed
all the parties concerned
that he will not be returning to complete the trial. Several attempts
were made to secure the attendance
of Mr. Human but he refused to
return.
The
honourable review judge is accordingly humbly requested to
order that the proceedings be set aside and that the
trial be started
de nova.
The
partially transcribed record is also attached.
The
accused is currently in custody awaiting the outcome of the review."
[2]
Section 304A
is meant for situations
where a presiding officer in the Magistrates or Regional Court who
has convicted the accused but before
sentence is imposed is of the
opinion that the proceedings are not in accordance with justice. In
that event the same Magistrate
or Regional Magistrate transmits the
record for a judge to review the proceedings. The matter on hand is
clearly a totally different
matter. In this matter, the presiding
officer had retired whilst the matter was part-heard by him and no
conviction had as yet
been pronounced. Section 304 of the Criminal
Procedure Act does equally not apply to these set of facts.
[3]
In
this
matter
we
are
dealing
with
the
impossibility
of
the
presiding
officer who heard the matter
in part continuing with the trial as a result of retirement. The fact
that the retired Regional Magistrate
is unwilling to
continue with
the trial compounds
the
problem
because only if he was
willing to
continue
with
the
case,
he
would be
cloaked
with jurisdiction
to do so in that specific
matter otherwise
he has no more jurisdiction
in that court where he
presided:
R v
Mh/anga,
1959 (2)
SA 220
T. at 2
22,
where the following was stated:
"Many
events may however occur after the taking of the plea which may
render the proceedings abortive and therefore
a
nullity because 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 the Magistrate, his resignation or dismissal, his
recusal or
his transfer out of the particular district..."
In
S
v
De
Koker:
1978
(
1)
SA
659
(0)
at
660
H
the
following was
stated:
"Volgens
die regspraak bring onmoontlikheid daa!Van om met die verhoor voort
le gaan weens onbeskikbaarheid van die /anddros
mee dat die
verrigtinge sander meer
as
abortief beskou word en verval sander die noodsaak van enige
tersydestelfing deur 'n Hoer Hof"
[4]
If proceedings are abortive,
like
in casu,
they are a
nullity. There is no need
to
set
aside
proceedings
that
are
a
nullity.
Only
valid proceedings can
form a subject of review. The
matter can simply start
de nova
before
another Regional
Magistrate
without delay.
[5]
In the circumstances no order setting aside the proceedings is made.
______________________
MOLOI,
J
I
agree,
______________________
MOCUMIE,
J