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[2008] ZAFSHC 61
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S v Mokone (471/08) [2008] ZAFSHC 61 (14 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
471/08
In the review between:-
THE STATE
and
TEFO ABRAM MOKONE
_____________________________________________________
CORAM:
HANCKE,
J
et
RAMPAI, J
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
14
AUGUST 2008
_____________________________________________________
[1] This
is a special review which originates from
the
Welkom regional court where the accused was tried on a charge of
theft of 2841 banting guides to the tune of R63 666,81 the
property
of Masimong Gold Mining Co (Pty) Ltd which was in the lawful
possession of J.G. van der Merwe at number 5 shaft of the
aforesaid
mine at Hennenman on 1 September 2000.
[2] The
trial of the accused began on 21 August 2001 in the Welkom regional
court where he pleaded not guilty before Mr. A.J. Visser.
Mr. L.
Bontes and later Mr. P.H. de Kock appeared for the State, whereas Mr.
A. de Jager and later Mr. T. Chabane appeared for
the defence. Mr.
J. Tshabalala was the interpreter.
[3] All
in all four witnesses have testified so far – three for the
prosecution, namely J.G. van der Merwe Terblanche, C.W.
Thompson and
J.F. Swartz for the prosecution and T.A. Mokone for the defence. The
State case has been closed, but the defence
case not.
[4] On
20 November 2001 the case was postponed to 5 March 2002. On 5 March
2002, however, the accused did not attend court. A
warrant for his
arrest was authorised and a provisional order of forfeiture of the
bail was made. The case was postponed to 9
April 2002. On that day
the accused was still absent. A final order of forfeiture of the
bail money was made.
[5] The
accused was still at large when the trial magistrate, Mr. A.J.
Visser, took pension and went on retirement in October 2005.
Over
two years later, on 20 November 2007 to be precise, the accused
appeared in court on a warrant of arrest. On 14 December
2007 he was
again released on bail. Since then the case was postponed several
times for the resumption of the hearing. The trial
magistrate was
contacted and efforts were made to persuade him to come back from
retirement to finalise the case. On 22 April
2008 Ms Ismail, the
regional court magistrate, recorded that the trial magistrate was not
prepared to do so.
[6] In
the light of the aforegoing circumstances Mr. J.J. Human, the
regional court magistrate, in an undated memo, requested that
the
incomplete proceedings be set aside and that the hearing of this case
should start afresh.
[7] The
trial magistrate has taken pension and retired from public service.
Such retirement means that, for all practical intends
and purposes,
the trial magistrate has ceased to be an active employee of the
State. In the absence of any subsisting employment
relationship
between a retired magistrate and his former employer, there exists no
legal mechanism whereby he can be compelled
to come back from
retirement in order to finalise the pending trial. In the
circumstances I am inclined to grant the request of
Mr. J.J. Human.
[8] Accordingly I make
the following order:
8.1
The
entire incomplete proceedings that were heard before the retired
regional court magistrate, Mr. A.J. Visser, from 21 August
2001 until
the accused absconded on 20 November 2001 are hereby set aside.
8.2
The
accused must be tried
de
novo
before another regional court magistrate other than the retired Mr.
A.J. Visser.
______________
M.H. RAMPAI, J
I concur.
________________
S.P.B.
HANCKE
,
J
/sp