S v Hanekom (33999, 465/03, 15/478/03) [2003] ZAWCHC 67; 2004 (1) SACR 490 (C) (3 December 2003)

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[2003] ZAWCHC 67
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S v Hanekom (33999, 465/03, 15/478/03) [2003] ZAWCHC 67; 2004 (1) SACR 490 (C) (3 December 2003)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
High
Court Review No: 033999
Review
Case No:
465/03
Magistrate’s
Case No: 15/478/03
In the
matter between:
THE
STATE
vs
RANDALL
HANEKOM
REVIEW
JUDGMENT DELIVERED: 3 DECEMBER 2003
YEKISO,
J
[1] The issue which I
have to determine in the instance of this matter is whether the
unterminated criminal proceedings arising from
the summary
termination of the employment contract of the presiding judicial
officer become a nullity on termination of employment
of such a
judicial officer. If such proceedings become a nullity a further
question I have to determine is whether such unterminated
criminal
proceedings have to be set aside before an accused person in such
unterminated criminal proceedings can be tried
de novo
another
judicial officer. This issue arises in this matter which came
before me by way of a special review in terms of
section 304(4)
of
the
Criminal Procedure Act, 51 of 1977
.
[2] The
matter relates to pending criminal proceedings before one Mr B P
Thomas (who I shall hereafter refer to as “the trial Magistrate”)
and who was appointed an acting Magistrate on contract. His
contract would have expired on 31 August 2003. The proceedings
which
are the subject of this review commenced before the trial
Magistrate on 21 July 2003. On the date the proceedings commenced
the
Court heard the evidence of one witness who testified for the
State. Due to time constraints the proceedings could not be finalized
and had had to be postponed until 12 August 2003. The proceedings
were postponed at a stage when the witness had to be cross-examined
by the accused’s legal representative.
[3] On
11 August 2003, a day before the pending trial would resume, the
employment contract of the trial Magistrate was summarily
terminated.
This resulted in the proceedings not being proceeded with on 12
August 2003.
[4] On
25 August 2003 the Magistrate, Cape Town addressed a letter to the
Registrar of this Court under cover whereof was enclosed
the original
case record inclusive of the transcription of the un-terminated
proceedings, requesting that the proceedings before
the trial
Magistrate be set aside and an order that the proceedings commence
de
novo
before another
Magistrate.
[5] When
the record of the proceedings was placed before me on 2 September
2003 I telephoned Mr Venter, Senior Magistrate, Cape Town.
I
requested him to let me have a copy of the employment contract of the
trial Magistrate and also the reason for the summary termination
of
his employment contract. In response to my telephonic communication
Mr Venter furnished me with a copy of a letter dated 11
August 2003
addressed to the trial Magistrate by the Chief Magistrate, Cape Town
contents whereof read as follows:
“
In
view of certain incidents on 11 August 2003 you are hereby given 24
hours’ notice of termination of your employment as temporary
magistrate. Your appointment as temporary magistrate is withdrawn
with immediate effect. You need not attend office tomorrow,
but
payment of your salary will be authorized until tomorrow 12 August
2003.”
What
is evident on basis of the contents of the letter by the Chief
Magistrate to the trial Magistrate is that the latter no longer
had
authority to adjudicate over matters which were pending before him
prior to the summary termination of his employment contract,
including the matter under review. He was thus ousted out of his
jurisdiction to try the matter under review until final disposition
thereof. It is quite evident that if the trial against the accused
had had to proceed, it could only proceed
de
novo
before another
Magistrate.
[6] As
has already been pointed out in paragraph [1] of this judgment the
question which immediately arises is whether the unterminated
proceedings have to be set aside before the trial of the accused
commences
de novo
before another Magistrate or whether the accused can be tried before
another Magistrate without the unterminated proceedings before
the
trial Magistrate being set aside. Put conversely the issue is
whether the unterminated proceedings in an instance where the
presiding officer is not available, in an absolute sense, renders the
unterminated proceedings a nullity without an order of declaration
of
nullity or whether such nullity should be preceded by a formal order
of declaration of nullity.
[7] On
considering the record of the unterminated proceedings, I could not
detect any irregularity
ex
facie
the record.
However, in view of the issue I raised in the preceding paragraph I
addressed a letter to the Director of Public Prosecutions
requesting
for submissions as to:
whether
the current proceedings, unterminated as they are, ought to be set
aside and an order be made that the accused be tried
de
novo
before another
Magistrate; or
whether
the accused can be tried
de
novo
before another
Magistrate without the un-terminated proceedings being set aside;
I
am grateful to
Mr Badenhorst
of the office of the Director of Public Prosecutions for his incisive
memorandum in response to the issues raised in my letter.
[8] A survey of decided
cases reveals that there are various circumstances under which
criminal proceedings become unterminated and
these range from the
death of the presiding magistrate; resignation by the presiding
magistrate when the proceedings are partly heard;
recusal,
retirement, dismissal and suspension from service.
[9] The
issue of unterminated proceedings, or pending proceedings to put it
differently, is significant in view of the possibility
of a plea of
lis pendens
being
raised should fresh proceedings be instituted against an accused
against whom such proceedings are pending whilst the fate of
such
pending proceedings has not as yet been determined and a further
possibility of an accused against whom such proceedings are
pending
demanding a verdict in respect of the unterminated proceedings in
which he has already tendered a plea.
[10]
Section
106(4)
of the
Criminal Procedure Act provides
as follows:
“
An accused who pleads
to a charge, other than a plea that the court has no jurisdiction to
try the offence, or an accused on whose
behalf a plea of not guilty
is entered by the court, shall, save as is otherwise provided by this
Act or any other law, be entitled
to demand that he be acquitted or
be convicted.”
As
the accused in the instance of this matter has already pleaded, the
question is whether such an accused can either demand a verdict
or
whether the possibility is open to him to raise a plea of
lis
pendens
as is contemplated
in
section 106(4)
of the
Criminal Procedure Act should
fresh
proceedings be instituted against him without the pending proceedings
being set aside. Once again a review of past decisions
in various
jurisdictions reveals that a plea of
lis
pendens
or a demand for a
verdict is not sustainable in an instance where the unterminated
proceedings are a nullity.
[11] The
full bench of the Transvaal Provincial Division made the following
observation in
S v Mayisa
1983(4) SA 242 (T)
at 247
G-H:
“
Wanneer
ʼn beskuldigde eers gepleit het is hy geregtig om te eis dat hy
vrygelaat of skuldig bevind word deur die geregtelike beampte
voor
wie die verhoor ʼn aanvang geneem het. Die enigste beperking op
hierdie beginsel is dat indien die geregtelike beamp
te
voor wie die beskuldigde onskuldig gepleit het om enige rede nie
beskikbaar is om die verhoor voort te sit nie en daar geen getuienis
aangevoer is nie, die verhoor voor enige geregtelike beampte van
dieselfde hof voortgesit kan word. Myns insiens berus hierdie
siening
op ʼn korrekte uitleg van art 106(4) gelees met art 118.”
[12] In
all the instances mentioned in paragraph 7 of this judgment the
presiding judicial officer is not available to continue with
the
trial. It would appear that a distinction is drawn on the
availability or otherwise of a presiding judicial officer in the
sense of relative unavailability or absolute unavailability.
Hiemstra
: Suid-Afrikaanse
Strafproses 6
th
Edition
puts the position
as follows at p287:
“
Waar
die verhoor, sover as wat dit gekom het, blyk nietig te wees kan die
beskuldigde nie
ʼn
bevinding eis nie want geen geldige bevinding kan op ʼn nietigheid
volg nie. ʼn Aangevange verhoor sal nietig wees waar die
geregtelike
amptenaar in die absoluut sin nie meer beskikbaar is nie
om ʼn rede soos afstorwe, aftrede, ontslag, bedanking of rekusering.
Dan
moet die verhoor
de novo
begin voor ʼn ander regtelike amptenaar.”
Hiemstra,
in his work cited above, seems to place unavailability in instances
of death, retirement, discharge, resignation and recusal
referred to
in paragraph 7 of this judgment in the category of non-availability
in the absolute sense and does not refer to an instance
of a
non-availability arising from suspension. It would seem Hiemstra
excludes suspension from service from the category of unavailability
in the absolute sense in his classification of categories of
unavailability.
[13] In
S v De Koker 1978(1) SA
659(O)
at 660 Flemming AJ
made the following observation:
“
Volgens
die regspraak bring onmoontlikheid daarvan om met die verhoor voort
te gaan weens onbeskikbaarheid van die landdros mee dat
die
verrigtinge sonder meer as abortief beskou word en verval sonder meer
die noodsaak van enige tersyderstelling deur ʼn hoer hof.”
Hiemstra,
in his work referred to in paragraph [11] of this judgment places
unavailability in instances of death, retirement, dismissal,
discharge and recusal in the category of unavailability in an
absolute sense as against unavailability as a result of instances
such
as transfer to another district, suspension or unavailability
due to ill health. In all such instance where the presiding
magistrate
is unavailable in the absolute sense, the unterminated
proceedings become a nullity and the accused may be tried
de
novo
before another
magistrate without the need for an order setting aside such
proceedings which appears to accord with
S
v De Koker
supra.
[14] In
S v Lapping 1998(1) SACR
409(W)
the presiding
magistrate in a part-heard trial was suspended from service pending
the outcome of criminal and disciplinary proceedings
instituted
against her. Her return to active service depended on the outcome of
the pending criminal proceedings and the disciplinary
proceedings
which would follow. There was thus no certainty about her
availability and, in the interim, the proceedings against
the accused
could not be finalised because of her unavailability. The accused
was obviously prejudiced because of the delay in
having the
proceedings finalised. Because of this uncertainty the proceedings
had had to be set aside, leaving it to the Attorney-General
to
institute fresh proceedings against the accused should it be
desirable to do so.
[15] In
S v Polelo 2000(2) SACR 734
(NC)
at
736 c-d
it was held that in
the event of the resignation of the presiding judicial officer in a
part-heard matter, the trial could commence
de
novo
before another
presiding judicial officer without an order of the High Court setting
aside the unterminated proceedings. In the
view of Hiemstra supra,
which was followed in
S v De
Koker
supra, such
un-terminated proceedings become a nullity on the resignation of the
presiding judicial officer and, thus, there is no
need for an order
to set aside such proceedings before the accused could be tried
de
novo
before another
presiding judicial officer. (See also
Du
Toit et al: Commentary on the
Criminal Procedure Act
at
15-37)
[16] In
the instance of this matter the contract of the presiding judicial
officer, who was appointed temporarily, was summarily terminated.

From the moment his contract was terminated he no longer had
jurisdiction to proceed with the trial of the matter to its finality.
This is a matter of certainty so that in that sense his
unavailability is absolute. Following the reasoning in Hiemstra,
S
v De Koker
and
S v Polelo
supra the
unterminated proceedings became a nullity on the summary termination
of the contract of the trial Magistrate.
[17] It
therefore follows in the instance of this matter that the
unterminated proceedings became a nullity on summary termination
of
the employment contract of the trial Magistrate. Such proceedings,
being a nullity, do not need to be preceded by any formal
declaration
of nullity before fresh proceedings could be instituted against the
accused before another Magistrate.
[18] In
the result the accused in this matter could be tried before another
Magistrate without an order setting aside the unterminated
proceedings which, in any event, became a nullity on summary
termination of the employment contract of the trial Magistrate.
Consequently
there is no need for an order for the unterminated
proceedings to be set aside.
__________________________
N J
YEKISO, J