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[2003] ZAWCHC 62
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S v Stoffels and Others (3/1022/02) [2003] ZAWCHC 62; 2004 (1) SACR 176 (C) (21 November 2003)
[REPORTABLE]
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL
DIVISION]
High
Court Ref. No: 0035054
Magistrateâs serial No: 135/03
Case No: 3/1022/02
In
the matter between:
THE
STATE
vs
DANIEL
STOFFELS & 11 OTHERS
=======================================================
REVIEW
JUDGMENT: 21 NOVEMBER 2003
=======================================================
FOURIE,
J:
[1] This matter has come before
me on special review. It involves 12 part- heard matters in the
Mitchells Plain Magistrates Court.
The presiding magistrate was
allegedly involved in a shooting incident on 30 November 2002, which
resulted in criminal charges being
brought against him. He is due to
appear in this court on 1 March 2004 on a charge of murder. The
magistrate has also been provisionally
suspended from office by the
Magistrateâs Commission.
[2] The presiding magistrate
requested that the 12 matters be sent on special review and states
that
âwhatever the
outcome of my case might be, I do not intend to preside in the court
of law again.â
He
accordingly requests that the proceedings in the 12 part-heard
matters be set aside with a direction that the said cases are to
be
heard
de novo
before
a different magistrate.
[3]
Section 118
of the
Criminal
Procedure Act, No. 51 of 1977
provides that if the presiding officer
before whom an accused at a summary trial has pleaded not guilty, is
for any reason not available
to continue with the trial and no
evidence has been adduced yet, the trial may be continued before any
other presiding officer of
the same court. In the instant case
section 118
does not apply as evidence has been adduced in each of
the 12 matters.
[4] Where a magistrate dies or
has become incapacitated or where he/she has been dismissed or has
resigned, the part-heard proceedings
before him/her are aborted and
therefore a nullity. The same applies where the magistrate has
recused himself/herself. The trial
may then commence
de
novo
before another
magistrate without an order of the High Court setting the earlier
proceedings aside. See
R
v Mhlanga
,
1959 (2) SA
220
(T):
S v De Koker
,
1978 (1) SA 659
(O);
S
v Molowa
,
1998 (2)
SACR 422
(O) and
S v
Bolelo
,
2000 (2) SACR
734
(NC).
[5] In
S
v Richter
,
1998 (1)
SACR 311
(C), the magistrate could not continue with the trial as she
had become aware of the previous convictions of the accused. She
ordered
that the matter be heard de novo before another court. The
order of the magistrate was held to be an irregularity as there is no
statutory authority for a magistrate to order that the trial should
be instituted before another court. Where such a declaration
is
required, the matter should be referred to the High Court for the
setting aside of the proceedings.
[6] Where, as in the instant
matter, the magistrate recuses himself, I am of the view that such
recusal constitutes an absolute supervening
impossibility which
nullifies the proceedings. In
Richter
no such supervening
impossibility was present and the magistrate erred in granting an
order for which she had no statutory authority.
It follows, in my
view, that the decision in
Richter
does not apply in the
instant case.
[7] In the result each of the 12
matters may commence de novo before another magistrate without an
order of this court setting the
earlier proceedings aside.
---------------------
P.B.
FOURIE, J
I
agree
---------------------
D.V.
DLODLO, AJ