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South Africa: Free State High Court, Bloemfontein
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[2009] ZAFSHC 115
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S v Khumalo [2009] ZAFSHC 115 (12 November 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case Number : 585/09
In
the special review between:-
THE
STATE
and
ISHMAEL
KHUMALO
CORAM:
EBRAHIM,
J
et
MOLOI,
J
_____________________________________________________
JUDGMENT
BY:
EBRAHIM,
J
DELIVERED ON:
12
NOVEMBER 2009
[1] This matter was
placed before us by virtue of the provisions of section 304A of Act
51 of 1977 for an order setting aside the
proceedings conducted thus
far.
[2] The reasons for
requesting such an order were set out by the Add. Magistrate,
Odendaalsrus in a letter dated 4 September 2009
and which reads as
follows:
â
Enclosed herein is the charge sheet
and part of the transcribed court proceedings. The accused Ishmael
Khumalo, was found guilty
of theft on 18/2/2009.
Due to his previous convictions, the
proceedings were stopped and the matter was to be referred to the
Regional Court for sentence
in terms of Section 116(1)(b) Act
51/1977.
From 18/2/2009 till 30/06/2009, the
transcripts were not received. The clerk of the court on numerous
occasions tried to ascertain
the reason for the delay, but without
success.
On the 31/7/2009 Craig le Roux from
Advocate Solutions was subpoenaed by the Court to give reasons for
the delay.
He testified that they were
experiencing problems with the new digital recording machine as the
central server in Bloemfontein was
not functioning probably and has
since been replaced.
However, a few days later, the CDâs
were received and the record was transcribed.
Upon receipt of the record, it was
apparent that the record was incomplete.
The evidence of key witnesses, Abraham
Chopo, Cynthia Nought and Nomsa Radebe was not recorded.
Due to the laps of time, and the fact
that the courtâs notes were misplaced, it will be impossible to
reconstruct the record.
I humbly request that the proceedings
be placed before the Honourable Review Judge in chambers, in order
for the proceedings to
be set aside, and the matter start
de
novo
before another
magistrate.
The accused has been informed of the
current situation and he has been warned to appear on the 30
th
October 2009.â
[3] As the proceedings
are incomplete, justice cannot properly be served and the following
order is made:
3.1 The proceedings in
the matter S v Ishmael Khumalo, Case No. 585/09, is hereby set aside.
3.2 The conviction of
theft is set aside.
3.3 The proceedings are
to commence
de
novo
before a different Add. Magistrate.
_____________
S. EBRAHIM, J
I concur.
____________
K.J. MOLOI, J
/sp