## REPUBLIC OF SOUTH AFRICA
## IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG
Appeal Case Number: A304/2017
Trial Case Number: SS50/2014
In the matter between:
RALPH MAZIBUKO
and
THE STATE
## JUDGMENT
## STRYDOM, J
- [1] This is an application to correct an appeal judgment of the Full Court of this division; pursuant to the terms of Rule 42(1)(b) of the Rules of this Court. Further or alternative relief was also sought.
Applicant
Respondent
- note
- a
- b
- C
- d
- e
- e
- f
- 9.
- 6,
- a.
- a
- b
- a
- b
- C
- d.
- a
- b
- C
- d
- e
matters_
- a
- clerical,
was, on that date already functus officio; Patel J had since passed away and the reliance on uniform rule 42(1)(b) was misplaced. What Kruger AJ did is a nullity and has no effect on the sentence. It is in the circumstances open to this court to determine the sentences afresh:'
- [42] Thus, the court in Guca found that a judgment could not be corrected by a single judge who presided with another judge in an appeal matter as he would be functus officio. One of the judges had passed away . The court found that reliance on rule 42(1)(b) was misplaced. It is somewhat unclear whether Tshiqi JA found that no correction would be permissible by the judges at all. No reference was made to possible exceptions, introduced into our law as was referred to in the Firestone matter .
- [43] From a reading of the judgment of Tshiqi JA, it is clear, however, that it would not be competent for a single judge to correct the judgment of a Full Court or of a Full Bench. In the case of a Full Court judgment the correction should be made by that court.
- [44] It is indeed so that this matter cannot be referred back to the three judges who constituted the Full Court. Monama, who was presiding over the Full Court; has passed away. 1am aware that the other two acting judges are still available Judge
- [45] The amicus curiae referred me to the terms of section 14(5) of the Superior Courts Act 10 of 2013 (Superior Courts Act) which provides a solution where a Full Court can no longer sit as a three judge's court. This section provides as follows:
"If, at any stage during the hearing of any matter by a full court; any judge of such court is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises, that hearing must~(a) if the remaining judges constitute a majority of the judges before whom it was commenced, proceed before such remaining judges; or (b) if the remaining judges do not constitute such a majority, or if only one judge remains; be commenced de novo; unless all the parties to the proceedings agree unconditionally in writing to accept the decision of the majority of the remaining judges Or Of the one remaining judge as the decision of the court.
- proceedings .
- required.
R. STRYDOM
JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG
7
Adv.