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[2012] ZAFSHC 90
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S v Nthongoa, S Hlaza and Another, S v Mtshali and Another, S v Qhamakoane and Others, S v Makhalema, S v Chabalele and Another, S v Mathozi and Others, S v Tofu and Others, S v Hlakoane and Another, S v Mboweni, S v Ngxatha and Others, S v Motsoeneng and Others, S v November, S v Sebotho and Another, S v Seitlheko and Others, S v Ngxoboyi, S v Mokhuma and Others (90/2012) [2012] ZAFSHC 90 (10 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 90/2012
The
First Review
In the review between:-
THE STATE
versus
JOHANNES MOLEFI
NTHONGOA
The
Second Review
In the review between:-
THE STATE
versus
TLALI JOHANNES
HLAZA
ELIAS BARDA
The
Third Review
In the review between:-
THE STATE
versus
SELBY BHEKUYISE
MTSHALI
ZAMUXOLO NICKSON
KHOLO MAJOVA
The
Fourth Review
In the review between:-
THE STATE
versus
PERCY KABAS
QHAMAKOANE
KHETSING PAVINCE
KOLISANG
TSETSI PAUL TSELI
RALEPOTSI AUGUST
TSELI
MATSOSO MAHLOMOLA
JULIUS
The
Fifth Review
In the review between:-
THE STATE
versus
KENALEMANG WILLIAM
MAKHALEMA
The
Sixth Review
In the review between:-
THE STATE
versus
MBALEKELWE JOHN
CHABALELE
TOHLEY TEBOHO EDWIN
MLANGENE
The
Seventh Review
In the review between:-
THE STATE
versus
PULE WILLIAM
MATHOZI
MOEKETSI GIVEN
SONYATHI
JACOB TIEHO MOTAUNG
The
Eight Review
In the review between:-
THE STATE
versus
SAZISO TOFU
MONYANE MAKHETHA
PAUL MOHAPI
PEDRO LAQUEN
The
Ninth Review
In the review between:-
THE STATE
versus
AFRICA PULE
HLAKOANE
TATOLO ANDREW
BAADJIE
The
Tenth Review
In the review between:-
THE STATE
versus
SIPHO THEMBA
MBOWENI
The
Eleventh Review
In the review between:-
THE STATE
versus
THANDISIEWE NGXATHA
VUMI NGXATHA
LULAMA NASHOMBOZA
The
Twelfth Review
In the review between:-
THE STATE
versus
MOSES MOTSHEARE
MOTSOENENG
THAPELO MATLALA
MARK MIQUEL MESA
The
Thirteenth Review
In the review between:-
THE STATE
versus
SIMPHIWE NOVEMBER
The
Fourteenth Review
In the review between:-
THE STATE
versus
PHUMIZILE WISEMAN
SEBOTHO
MOTHIBEDI JAN
LEBATLA
The
Fifteenth Review
In the review between:-
THE STATE
versus
TSEDISO BENJAMIN
SEITLHEKO
MODULELO PETRUS
PITSO
NTOMBI EVELYN
MATROOS
The
Sixteenth Review
In the review between:-
THE STATE
versus
VUSI JOHANNES
NGXOBOYI
The
Seventeenth Review
In the review between:-
THE STATE
versus
PONO ZWELINZIMA
MOKHUMA
SELEMPI STOFFEL
LONDON
_______________________________________________________
CORAM:
HANCKE,
AJP
et
SNELLENBURG, AJ
_______________________________________________________
JUDGMENT BY:
SNELLENBURG, AJ
_______________________________________________________
DELIVERED:
10 MAY 2012
_______________________________________________________
[1] The aforesaid 17
matters were all referred to this Court for special review in terms
of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
, as
amended [“the Act”].
[2] The matters were all
referred under the same request for review and are considered and
dealt with together as the same issue
arises in all the matters.
[3] All the matters
relate to cases that are partly heard (evidence has been led in all
the cases) before Mr E H Ludick, an acting
Regional Magistrate seated
at Welkom.
[4] Due to the nature of
the issue that needs to be determined in this review it is not
necessary to deal with the full factual
background of each case, save
to repeat that the matters have proceeded and are all partly heard
before the said Regional Magistrate.
[5] The three of matters
have 2008 case numbers; one matter has a 2009 case number; one has a
2010 case number and the remaining
twelve cases have 2011 case
numbers.
[6] The background facts
and circumstances that are relevant and pertinent to this matter
appear from the request for special review
by the Regional Court
Magistrate, Welkom, to wit Mr, J.J. Human
and include the
under mentioned.
[7] Mr Ludick’s
services were terminated on 31 December 2011.
[8] After several
attempts to secure the attendance of the trial magistrate, Mr Ludick,
to finalise the partly heard matters that
were outstanding and which
includes the matters that form the subject matter of these review
proceedings, Mr Ludick eventually
agreed to return and to finalise
the outstanding matters.
[9] To this end Mr.
Ludick started again on 6 March 2011 but his services were finally
terminated on 16 March 2011 by the Regional
Court President due to
health related and other problems.
[11] Although the precise
nature of the health and other problems do not appear from the
written request, dated 28 March 2012, the
fact of the matter remains
that Mr. Ludick’s services have been finally terminated and he
will not return to finalise the
partly heard matters.
[12] The accused in all
the matters under consideration have a constitutionally entrenched
right to a fair trial that is finalised
without undue delay. Section
35(3)(d) of the Constitution of the Republic of South Africa, 108 of
1996 provides,
“’
Every
accused has a right to a fair trial, which includes the right –
…
(d) to have
their trial begin and conclude without unreasonable
delay.’
”
[13] Save that
Section
275 of the Act makes provision that any other judicial officer of the
court in which a conviction was granted may pass sentence
or make any
order that the judicial officer that passed the conviction could have
made, if the last mentioned judicial officer
becomes unavailable
before the accused is sentenced, the Act contains no express
provision regarding the unavailability of a judicial
officer in the
present circumstances.
[14]
The
Act therefor contains no express provision for the further conduct
where the judicial officer becomes unavailable to finalise
a partly
heard trial before a conviction is made or an acquittal is granted in
the proceedings.
[15] In
addition, an accused may demand a verdict once he has pleaded. There
are however exceptions to this rule.
[16] The
answer is to be found in the judgment by Hiemstra CJ in
S
v MAKGETLE
1980
(4) SA 256
(B) at
257A - D,
“
Where
the magistrate who started the trial is no longer available in the
absolute sense, as where he dies or has recused himself,
the trial
can be resumed
de
novo
before another magistrate, if the prosecutor so decides (Punshon v
Wise
1948 (1) SA 81
(N); Zackey v Magistrate of Benoni
1957 (3) SA 12
(T); Magubane v Van der Merwe NO
1969 (2) SA 417
(N)). That is so
because the proceedings so far are a nullity in that the court has
ceased to exist. Where the magistrate has been
transferred the
proceedings are not a nullity. He must be brought back to the court
where the trial commenced and must conclude
it (S v Gwala
1969 (2) SA
227
(N)). There is no direct authority on the instance where the
magistrate has resigned from the service. It is however clear that
he
is in the same position as one who is in the absolute sense
unavailable, like a magistrate who has died or has recused himself.
These are therefore also cases where the accused cannot at this stage
demand a verdict.
”
[17] In the matters under
review Mr. Ludick’s services have been finally terminated and
us such the judicial officer that
presided in the partly heard
matters has become unavailable to conclude the trials in the absolute
sense.
[18] The matters are
reviewable in terms of the provisions of Section 304(2)(c)(iii)
and(v) read with Section 304(2)(c)(vi). That
finding in itself cannot
dispose of matter. It remains to consider whether the accused will
have a fair trial as envisaged in Section
35(3)(d) of the
Constitution if the proceedings start afresh.
[19] As stated, save for
the three matters which date from 2008 and the one matter that date
from 2009, the remaining matters are
all 2010 and 2011 matters.
[20] There has not been
an inordinate delay from the date that the magistrate became
unavailable in the absolute sense until this
review.
[21] On that basis alone
the matters under consideration are to be distinguished from the
matter under consideration in the as yet
unreported judgement
recorded on
SAFLII
AS
S
v THOBELA
(258/07, DV237/2001)
[2007] ZAGPHC 204
(11 September 2007).
[22] The
matters are also to be
distinguished
on the facts of the matters.
[23] It follows that the
proceedings in all the cases under review (in this matter) are a
nullity as the court has ceased to exist
and must be set aside. The
prosecuting authority must be authorised to commence with the
proceedings
de novo
if it so decides.
[24] I accordingly make
the following order:
24.1 The proceedings in
case numbers:
24.1.1 SHO 30/11;
24.1.2 RC 74/11;
24.1.3 RC 128/11;
24.1.4 SH 46/11;
24.1.5 RC 407/11;
24.1.6 RC 248/08;
24.1.7 SHO 5/11;
24.1.8 RC 228/11;
24.1.9 RC 15/11;
24.1.10 RC 68/11;
24.1.11 RC 560/09;
24.1.12 SH 123/08;
24.1.13 RC 189/11;
24.1.14 SHBV 20/11;
24.1.15 RC 489/10;
24.1.16 SHO 1/11; and-
24.1.17 SH 324/08,
are declared a nullity
and are set aside;
24.2 The cases in 24.1
are remitted to the Regional Court, Welkom and the prosecuting
authority is authorised to commence with proceedings
de novo
in each of the cases before another judicial officer if it so
decides.
___________________
N. SNELLENBURG, AJ
I concur.
__________________
S.P.B. HANCKE, AJP
NS/sp