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2011
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[2011] ZAFSHC 153
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S v Thaele and Others, S v Pane and Others, S v Mafe, S v Mafuna and Another, S v Roestof, S v Mokoma, S v Nchoncho, S v Manare (A3448/2010, A3579/2010, A4348/2010, A4572/2010, A4638/2010, A5284/2010, A149/2011, A499/2011) [2011] ZAFSHC 153 (15 September 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 351/2011
In the review in the
following cases:
THE STATE
and
(1) THEBOHO THAELE AND
2 OTHERS
…............................
A3448/2010
(2) XEXILE RUBEN PANE
AND 2 OTHERS
…........................
A3579/2010
(3) KEITH CAPTAIN MAFE
…..................................................
A4348/2010
(4) SKHALO MAFUNA AND
1 OTHER
…................................
A4572/2010
(5) JOHANNES
LODEWIEKUS ROESTOF
…..........................
A4638/2010
(6) ANDREW THAMSANQA
MOKOMA
…...............................
A5284/2010
(7) THABISO JOHANNES
NCHONCHO
....................................
A149/2011
(8) PHAMELA BENJAMIN
MANARE
….....................................
A499/2011
______________________________________________________
CORAM
:
KRUGER, J et MATHEBULA, AJ
______________________________________________________
JUDGMENT
BY
: KRUGER, J
_______________________________________________________
DELIVERED
ON
: 15 SEPTEMBER 2011
_______________________________________________________
[1] This is a special
review dealing with the request that the proceedings in the above
eight cases be set aside due to the prolonged
illness of the
magistrate and that they commence
de novo
before another
presiding officer.
[2] These eight cases are
all part-heard before Mr A K Kajee, an acting magistrate, sitting at
Welkom.
[3] The details of the
cases are as follows:
1. S v THEBOHO
THAELE and 2 others - Case A3448/2010
Charges: 1 Malicious
injury to property.
2 & 3 Housebreaking
with intent to steal and theft.
Plea: 25 January 2011:
All three not guilty all 3 counts.
Mechanically recorded.
Postponed to 9 March 2011 (part heard).
9 March 2011:
Postponed to 15 April
2011: mechanically recorded.
15 April 2011:
Postponed to 28 May 2011,
part heard, postponed for inspection
in loco
.
30 May 2011:
Mechanically recorded,
postponed to 11 July 2011
11 July 2011:
Magistrate ill, case
postponed to 24 August 2011.
24 August 2011:
Magistrate ill, case
postponed to 16 September 2011 pending application to set proceedings
aside due to illness of Mr Kajee. Accused
numbers 1 – 3 in
custody; bail for accused number 3 set at R1000,00.
2. S v XIXILE RUBEN
PANE and 2 others - Case A3579/2010
Charge: Assault with
intent to do grievous bodily harm.
Plea: 28 February 2011:
All the accused not guilty.
Mechanically recorded,
postponed to 30 March 2011.
30 March 2011:
Legal representative
unavailable. Postponed to 15 June 2011.
15 June 2011:
Legal representative
unavailable. Postponed to 28 July 2011.
28 July 2011:
Other Presiding Officer.
Postponed to 17 November 2011.
3. S v KEITH
CAPTAIN MAFE – Case A4348/2010
Charge:
Reckless/Negligent driving
Plea: 2 March 2011: Not
guilty.
Mechanically recorded,
postponed to 4 May 2011.
4 May 2011:
Mr Kajee not at court.
1 August 2011:
Mr Kajee not at court,
postponed to 19 September 2011.
4. S v SKHALO
MAFUNA and 1 other - Case A4572/2010
Charge: Assault with
intent to do grievous bodily harm.
Plea: 9 March 2011: both
accused not guilty.
Trial commences.
Mechanically recorded, postponed to 19 April 2011.
19 April 2011:
Postponed because doctor
(witness) not available, postponed to 11 May 2011.
11 May 2011:
Other Presiding Officer,
postponed to 15 June 2011.
15 June 2011:
Doctor not available,
postponed to 1 August 2011.
1 August 2011:
Other Presiding Officer,
Mr Kajee ill, postponed to 14 September 2011.
5. S v JOHANNES
LODEWIEKUS ROESTOF – Case A4638/2010
Charge: Theft
Plea: 1 April 2011: not
guilty.
Mechanically recorded,
postponed to 27 June 2011.
27 June 2011:
Other Presiding Officer,
postponed to 18 August 2011.
18 August 2011:
Other Presiding Officer,
postponed to 18 September 2011 because Mr Kajee not available.
6. S v ANDREW
THAMSANQA MOKOMA – Case A2584/2010
Charge: Theft
Plea: 12 April 2011: not
guilty.
Trial commences before Mr
Kajee, mechanically recorded, postponed to 27 May 2011.
27 May 2011:
Mechanically recorded,
postponed to 14 June 2011.
14 June 2011:
Other Presiding Officer,
postponed to 26 August 2011.
26 August 2011:
Other Presiding Officer,
postponed to 26 September 2011.
7. S v THABISO
JOHANNES NCHONCHO and 1 other – Case A149/2011
Charge: Robbery
Plea: 7 April 2011: Both
accused not guilty.
Trial commences before Mr
Kajee. Mechanically recorded, postponed to 17 May 2011.
17 May 2011:
Other Presiding Officer,
postponed to 1 June 2011.
1 June 2011:
Other Presiding Officer,
postponed to 21 June 2011.
21 June 2011:
Other Presiding Officer,
postponed to 28 July 2011.
28 July 2011:
Other Presiding Officer,
postponed to 25 August 2011.
25 August 2011:
Other Presiding Officer,
postponed to 16 September 2011 for review.
8. S v PHAMELA
BENJAMIN MANARE – Case A499/2011
Charge: Assault with
intent to do grievous bodily harm.
Plea: 20 April 2011: Not
guilty.
Trial commences before Mr
Kajee, mechanically recorded, postponed to 1 June 2011.
1 June 2011:
Witness absent, postponed
to 15 July 2011.
15 July 2011:
Other Presiding officer,
Mr Kajee ill, postponed to 16 September 2011 for special review.
[4] Mr Kajee has been
diagnosed with lymphoma. According to a letter received from the
Specialist attending to Mr Kajee dated 5
August 2011, attached to the
request for Special Review of the Acting Senior Magistrate at Welkom,
Mr Kajee will receive treatment
for at least the next 6 months. As
his medical team is based in Cape Town, Mr Kajee will not be able to
work in the Free State.
It is not clear when Mr Kajee will be able to
resume his duties.
[5] The Acting Senior
Magistrate points out that an accused is entitled to a speedy trial,
and with reference to
S v MOKOENA
2005 (2) SACR 280
(O)
he states that it will be in the interests of justice that the
proceedings in these cases (all part-heard before Mr Kajee)
be set
aside, and that the trials commence
de novo
before another
magistrate. Such order should be made.
[6]
ORDER:
1. It is declared that
Magistrate A K Kajee is unfit to continue with the following trials:
(a) S v Theboho Thaele
and 2 others - Case A3448/2010;
(b) S v Xexile Ruben Pane
and 2 others - Case A3579/2010;
(c) S v Keith Captain
Mafe - Case A4348/2010;
(d) S v Skhalo Mafuna and
1 other - Case A4572/2010;
(e) S v Johannes
Lodewiekus Roestof - Case A4638/2010;
(f) S v Andrew Thamsanqa
Mokoma - Case A5284/2010;
(g) S v Thabiso Johannes
Nchoncho - Case A149/2011;
(h) S v Phamela Benjamin
Manare - Case A499/2011.
The proceedings in all
the above cases are set aside.
3. The Prosecuting
Authority is authorised to commence with proceedings
de novo
in all the above cases before another judicial officer.
____________
A. KRUGER, J
I agree
___________________
M.A. MATHEBULA, AJ
/EB/wm