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2024
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[2024] ZALMPPHC 93
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Kotelo v S (REV/57/2024) [2024] ZALMPPHC 93; 2024 (2) SACR 564 (LP) (12 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: REV/57/2024
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER
JUDGES: YES
(3) REVISED
DATE: 12/8/2024
SIGNATURE: TC TSHIDADA J
In the matter between:
PODILE MASHOTO KOTELO
and
THE STATE
REVIEW JUDGMENT
TSHIDADA J.
Introduction
[1] This matter served
before this court as a special review referred to it by Mrs. C
Langley, the Acting Judicial Head of Mogalakwena
Mokopane Magisterial
District.
[2] The current review
seeks clarity from this court of a legal impasse on whether a
criminal trial proceedings which commenced
at the Magistrate court
before an Acting Magistrate whose acting stint or term expired prior
to finalization of a trial, should
be declared a nullity, such that
it should be ordered to start
de novo
before another presiding
officer, alternatively, whether the concerned and available Acting
Magistrate, whom by law is deemed to
be seized with the said
partly-heard matter, should be invited by the Head of that particular
court to come and finalize the pending
or unterminated trial
.
Factual Background
[3] The accused was
charged on one count of corruption (Accepting a benefit whilst a
Public Officer) in the Magistrate Court for
the District of
Mogalakwena held at Mokopane under Case No: B20/2018.
[4] Following several
appearances and postponements of the matter for a variety of reasons
unnecessary to discern herein, the record
reflect that the main trial
ultimately commenced and got underway before Acting Magistrate M.K
Mmakola, sometime during 2018/2019.
The accused tendered a plea of
not guilty through his legal representative. Evidence of several
state witnesses was led and finalized.
[5] However, the review
referral letter indicates that the Acting Presiding Officer vacated
the office soon after his acting term
came to an end in July 2019,
amidst the trial under consideration. In spite, it is recorded that
on or during 2021, the then Judicial
Head of the court, one Mr. T.S
Boloka, was strangely instructed by the Sub-Cluster Head of their
court to inherit the aforesaid
matter and start it
de novo
,
despite the fact that Mr. Mmakola was still available to continue and
finalize his matter, provided the office assisted him with
the
necessary arrangements to enable the matter to proceed.
[6] Regardless of the
instruction to commence the matter
de novo
, the record
indicates that on 12 May 2021, Mr. Boloka struck the matter off the
roll due to what he considered unreasonable delay
on the part of the
state to finalize the matter. Regrettably, Mr. Boloka is also
reported to have resigned from service.
[7] The referral letter
further advises that on or about the 22 February 2024, the charges
against the accused were re-instated
by the same court, wherein on
the day of appearance the accused’s legal representative
informed the court that the proceedings
in respect of the re-instated
charges were partly-heard before the same court.
[8] Consequent thereto,
Mrs. Langley (Acting Judicial Head of the Court) advised that she
then contacted Mr. Mmakola in order to
ascertain how can he be
assisted with arrangements to return to the office in order to
finalize his partly heard matter. To her
dismay she reports that Mr.
Mmakola indicated he was unable to do so without furnishing her with
reasons. It was the afore-going
response that prompted the current
special review of the matter.
[9]
Upon perusal of the referral letter, this court wrote to Mrs. Langley
and directed her to seek and obtain written reasons from
Mr. Mmakola
to explain why he was unable to make himself available to come and
finalize his partly heard matter as required by
law and as a matter
of urgency to avoid violating the accused’s constitutional
right envisaged in Section 35(3)(d) of the
Constitution
[1]
which
provides thus:
“
the
accused is entitled to have their trial begin and conclude without
unreasonable delay.”
[10] This court is
enjoined to determine and resolve the question whether the referred
and unterminated proceedings should be set-aside
as a nullity and a
trial to be commenced
de novo,
alternatively to decide and
direct Mr. Mmakola to make arrangements jointly with Mrs. Langley or
her office to come and expeditiously
finalize his matter.
[11] This court has in
the past aptly laid down the guidelines in terms of which
unterminated criminal proceedings may or may not
be ordered to start
de novo.
[12] The observation was
made by MG Phatudi J (as he then was) in the case of Rakimana v State
(Rev 27/2021) [2021] ZALMPPHC 89
(28 April 2021) where the learned
Judge stated in para [10] that:-
“
The
commencement of and speedy conclusion of the trial is in terms of
terms of Section 35(3)(d) the pinnacle of fairness in every
criminal
proceedings”.
[13] The aforesaid
proposition stems from the premise that an accused person is
constitutionally entitled to a speedy ‘conclusion’
of the
trial without ‘undue delay’ in order to enjoy a fair
trial. Absent the fulfillment of the right enshrined in
Section
35(3)(d), I am unable to appreciate how fairness of the trial can
possibly be achieved.
[14] At issue in the
instant case is whether or not the presiding officer who prior to
expiry of his acting stint and seized of
the matter which was before
him, is available to finalize the unterminated trial still pending.
[15] The prevailing view
should be that the fact that the accused has already pleaded to the
charge and that extensive evidence
had also been led, he should be
entitled in terms of the provisions of Section 106 (4) read with
Section 118 of the Criminal Procedure
Act, (the Act) to a verdict.
[16] Section 9 (7) of the
Act lay down the jurisdictional factors necessary to determine the
issue at hand.
[17] That said, in sum,
it is not competent for another Magistrate to hear the pending case
de novo
merely because the presiding officer before whom the
trial commenced, is ‘unavailable’ due to not being
remunerated
in accordance with applicable rates or tariffs payable to
Acting Magistrate (as opposed to counsel’s fees). In
casu
,
the proceedings pending can for that reason not be declared a
nullity. See also S v Mahlangu
1993 (1) SACR 183
(B) at 186.
[18] In response to this
court’s query, Mrs. Langley reported back in writing that Mr.
Mmakola has since communicated and
committed his willingness to
finalize the part-heard matter provided that the office of the Chief
Magistrate undertakes in writing
that he shall be adequately
compensated for the duration of his presiding over the matter.
[19] Pursuant to Mr.
Mmakola committing to finalize the matter, the only outstanding issue
was for the magistrate’s office
to make sure that his
permissible claims and remuneration is processed adequately. This is
in line with the common law principle
that trial proceedings has to
be commenced with and be finalized as expeditiously as possible.
[20] It is common cause
that Mr. Mmakola has previously held acting period as Magistrate,
therefore he would undeniably be aware
and undoubtedly knows what is
there to be claimed, compensated, the applicable rate and tariff when
one takes up an acting appointment
as a Magistrate.
[21] It would therefore
be inappropriate for this court to interfere with any legislated
rates and tariffs with which acting presiding
officers are
remunerated. Unfortunately, we are all, including Mr. Mmakola, bound
by the provisions and prescripts of the applicable
judicial officer’s
remuneration legislation framework.
[22] Any suggestion to
nullify the partly-heard proceedings under the circumstances is a
non-starter, more especially in an instance
where the presiding
officer seized with the matter is and still available to proceed and
finalize his matter. Attempts to do that
shall be tantamount to
committing an unjustifiable irregularity not only to the accused, but
to everyone involved in the matter.
[23]
It is against this background that in a matter where the accused has
already pleaded to the charge, and the State has already
adduced and
led extensive evidence against him, the accused is entitled to, upon
finalization of the matter, to demand that he
be acquitted or be
convicted in terms of Section 106(4) of the Criminal Procedure
Act
[2]
,
as opposed to Section 118 of the Act which in summary provides for
any other Judge, Regional Magistrate or Magistrate of the same
court
to proceed with any matter arising from that court wherein the
accused would not have pleaded to the charges and where no
evidence
would have been led yet.
[3]
Legal Framework
[24]
Section 9(7)(a) of the Magistrates’ Court Act
[4]
regulates
the process of a Presiding Officer who was seized with a pending
matter before vacating and/or with reason for one becoming
unavailable arises.
[25] The Section provides
the following, thus:
“
A
Magistrate appointed in terms of sub-section (1) who presided in
criminal proceedings in which a plea was recorded in accordance
with
Section 106
of the
Criminal Procedure Act 51 of 1977
, shall,
notwithstanding his or her subsequent vacation of the office of the
Magistrate at any stage, dispose of those proceedings
and, for such
purpose, shall continue to hold such office in respect on any period
during which he or she is necessarily engaged
in connection with the
disposal of those proceedings”.
[26]
Section 9(7)(a)
and
(b) of the Act sets out the following jurisdictional factors:
(a) That there must have
been a plea recorded;
(b) Evidence led before a
Magistrate whom the accused pleaded before in accordance with
Section
106
of the Act;
(c) Lastly, that the
proceedings must not have been finally disposed of when the tenure of
the officer concerned as a Magistrate
or Acting Magistrate became
vacant.
[27] Having considered
the afore-going, Mr. Mmakola’s confirmation to attend to his
outstanding matter as well as the commitment
by the office of the
Chief Magistrate to remunerate him accordingly, I find nothing that
can obstruct him and/or his court from
resuming the matter where it
was left off and to be continued with to finality. What remains is
for the acting presiding officer
assisted by the designated officials
to make arrangements when the proceedings shall be resumed with as a
matter of urgency.
[28] The issue on how Mr.
Mmakola proposed to be remunerated should not, in my view, be
considered a bar or reason to nullify unterminated
proceedings, more
particularly in an instance where he cannot be assumed to lack
knowledge of what he is entitled to claim in his
capacity as an
Acting Magistrate, noting that it is a position which he held before,
and of which he would have most definitely
submitted his claims for
remuneration in the past.
[29] Section 9 (7)(a)(d)
of the Magistrates’ Court Act provides how benefits of a
Magistrates who has to dispose of pending
cases after vacating the
office of a magistrate should be determined. There is absolutely no
reason why the provided tariffs and
rates should not apply to Mr.
Mmakola.
[30] As a result, the
legislated processes should equally be followed when Mr. Mmakola’s
claims and remuneration is determined
and processed. Solely because
Mr. Mmakola shall not be sitting as an Advocate entitling him to be
reimbursed as if he was counsel
on brief when dealing with the
partly-heard matter, instead he shall be siting as an acting
Magistrate assuming the position he
was in when he initially started
with the proceedings under consideration, something which shall not
be new to him to require different
and/or new terms as intimated by
him.
[31] It is therefore
impermissible, irregular and untenable in law for a partly-heard
matter to be rendered a nullity and to start
de novo
before
another presiding officer for any other reasons other than that which
is provided for in terms of the law. Unauthorized
and unlegislated
demands of whatever form by an office-bearer cannot be considered a
reason to abandon the duties and responsibility
any officer of the
court is entrusted with, not unless as in this instance, the
“unavailability” of a Magistrate could
be due to special
circumstances such as death, recusal, dismissal, resignation and/or
mental incapacity, which is clearly not the
case
in casu.
[32] It is therefore my
considered finding that the current review does not warrant a
consideration to have the pending proceedings
herein declared null
and void, such that they have to be set aside and ordered to commence
afresh.
[33] Consequently, I
direct that Mr. Mmakola, Mrs. Langley, the court administration
support staff and the legal representatives
involved in this matter,
be informed of this judgment in order to put all systems in place as
soon as possible and make sure that
the pending criminal trial
resumes and is finalized in the best way possible without further
undue delay.
[34] In the
circumstances, I accordingly grant the following order:
34.1 That the accused’s
pending criminal trial under Case No. B20/2018 in Mokgalakwena
Magisterial District held at Mokopane
be resumed as soon as it is
reasonably possible or with immediate effect before Acting Magistrate
M.K Mmakola.
34.2 The Registrar/Clerk
of the court responsible for payments of Acting Magistrate’s
claims is directed to pay Mr. Mmakola
what is permissible for his
travelling and subsistence claims in terms of rates and tariffs per
applicable legislation for the
position.
34.3 The Registrar of
this court is directed to transmit a copy of this judgment, as a
matter of urgency, to Mrs. C. Langley (Acting
Head of the Mokopane
Magistrates Court) so that it can immediately be transmitted to Mr.
Mmakola, and to be distributed further
to all Heads of Limpopo
Magisterial Courts.
T.C TSHIDADA
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
POLOKWANE
I agree.
J. NGOBENI
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO DIVISION,
POLOKWANE
[1]
The
Constitution Act 108 of 1996, as amended
[2]
Act
51 of 1977
[3]
See
State v Mayisa 1983 (4) SA 241 (TPD)
[4]
Act
32 of 1944 as amended