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South Africa: Free State High Court, Bloemfontein
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2009
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[2009] ZAFSHC 116
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S v Maluka [2009] ZAFSHC 116 (12 November 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review:
616/2009
In
the
review
between:-
THE
STATE
and
PULE ISAAC MALUKA
_____________________________________________________
CORAM:
H.M.
MUSI, JP
_____________________________________________________
DELIVERED
ON:
12
NOVEMBER 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1]
During
May 2009 the accused appeared before the magistratesâ court at
Tseseng on charges under the provisions of Act 93 of 1996.
The
accused was legally represented and pleaded not guilty to the
charges. Thereafter the State led its witnesses and closed
its case.
The accused testified in his defence and closed his case. The
matter was then postponed to a date that does not appear
from the
record for purposes of hearing arguments on the merits. On the date
to which the matter had been postponed the magistrate
who heard the
matter was not available and it could not proceed.
[2] The
record of the proceedings has now been referred to this Court with
the following note:
â
1. This abo
ve
matter was dealt with by Mr. Sepenyane who was temporarily employed
after his retirement. His term has since expired.
2. The matter is partly heard and at a
stage where it cannot be disposed of in accordance with the provision
of section 275 of Act
51/1977 as the presiding officer has not
pronounced a verdict.
3. Endeavours to find Mr. Sepenyane to
finalise the case have proved futile.
4. The matter
should be referred to the Honourable Judge so as to give an
appropriate direction.â
[3] It
is beyond comprehension that a person who had been permanently
employed by the Government of the Republic of South Africa
as a
magistrate and who is now retired can simply vanish without trace.
Be that as it may, in these circumstances the trial has
so start
afresh before another magistrate. This could simply have been done
without any need for an order from this court. However,
I deem it
necessary, in order to avoid any confusion, to exercise the inherent
powers of a
Superior
Court and formally set aside the proceedings.
[4] The following order
is made:
The
proceedings herein are set aside and the matter is remitted to the
magistratesâ court for a trial
de
novo
before another magistrate.
___________
_
H.M.
MUSI, J
P
/sp