David v Regional Court Magistrate and Others
| Jurisdiction | South Africa |
| Citation | 2018 (1) SACR 702 (ECB) |
David v Regional Court Magistrate and Others
2018 (1) SACR 702 (ECB)
2018 (1) SACR p702
|
Citation |
2018 (1) SACR 702 (ECB) |
|
Case No |
153/17 |
|
Court |
Eastern Cape Local Division, Bhisho |
|
Judge |
Tokota J |
|
Heard |
October 17, 2017 |
|
Judgment |
November 14, 2017 |
|
Counsel |
Adv Maseti for the applicant. |
Flynote : Sleutelwoorde
Trial — Presiding officer — Unavailability of to continue with trial — After plea of not guilty but no evidence adduced — Purpose of s 118 of CPA to cater for situations where judicial officer becomes unavailable after plea, but before evidence — Permissible that trial continue before judicial officer C who is available.
Headnote : Kopnota
The applicant, together with 10 other accused, appeared before the first respondent in a regional magistrates' court on charges of fraud. They all pleaded not guilty and no evidence was adduced. After several postponements D they appeared again some 18 months later and, because the first respondent was not available, the parties agreed that the matter could proceed before the second respondent, an acting regional court magistrate. The state then called a witness whose evidence was led before the matter was postponed again. When the matter resumed, the legal representative for the first three accused withdrew and the matter had to be postponed again. Shortly before the trial was due to resume, the applicant, now advised by a E new legal representative, relying on the provisions of s 118 of the CPA, launched the present proceedings in which he sought an order that the decision of the first respondent 'to recuse herself', and the appointment of the second respondent to preside in the matter, be set aside.
After remarking that there was a singular lack of evidence produced in the applicant's papers, including no evidence that the first respondent had F recused herself,
Held, that, although it was true that once an accused pleaded not guilty he was entitled to a verdict before that judicial officer before whom he had pleaded, the purpose of s 118 of the CPA was to cater for situations where the judicial officer became unavailable after the plea but before evidence had been led. In such a case it was permissible that the trial could continue before a G judicial officer who was available. No irregularity had been committed by continuing the matter before the second respondent. (See [19] – [23].) The application was dismissed.
Cases cited
Administrator, Natal, and Another v Sibiya and Another 1992 (4) SA 532 (A): H referred to
Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A): referred to
Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) ((2008) 29 ILJ 73; 2008 (3) BCLR 251; [2008] 2 BLLR 97; [2007] ZACC 23): referred to
CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) ((2008) 29 ILJ 2461; I 2009 (1) BCLR 1; [2009] 1 BLLR 1; [2008] ZACC 15): referred to
DH Bros Industries (Pty) Ltd v Gribnitz NO and Others 2014 (1) SA 103 (KZP): referred to
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others J 2009 (2) SACR 130 (CC) (2009 (2) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): referred to
2018 (1) SACR p703
Ellis v Visser and Another 1956 (2) SA 117 (W): referred to A
Federal Convention of Namibia v Speaker, National Assembly of Namibia, and Others 1994 (1) SA 177 (Nm): referred to
Ginsburg v Additional Magistrate of Cape Town 1933 CPD 357: referred to
Haysom v Additional Magistrate, Cape Town and Another; S v Haysom 1979 (3) SA 155 (C): referred to
Helen Suzman Foundation v Judicial Service Commission and Others B 2017 (1) SA 367 (SCA) ([2016] ZASCA 161): referred to
Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A): referred to
Judge President Hlophe v Premier, Western Cape; Judge President Hlophe v Freedom Under Law and Others 2012 (6) SA 13 (CC) (2012 (6) BCLR 567; [2012] ZACC 4): distinguished
Lawrence v Assistant Resident Magistrate of Johannesburg 1908 TS 525: C referred to
Makhuva and Others v Lukoto Bus Service (Pty) Ltd and Others 1987 (3) SA 376 (V): dictum at 386 applied
MEC for Education, Gauteng Province, and Others v Governing Body, Rivonia Primary School and Others 2013 (6) SA 582 (CC) (2013 (12) BCLR 1365; [2013] ZACC 34): referred to D
Mendes and Another v Kitching NO and Another 1995 (2) SACR 634 (E) (1996 (1) SA 259): referred to
Mgijima v Eastern Cape Appropriate Technology Unit and Another 2000 (2) SA 291 (Tk): referred to
Motata v Nair NO and Another 2009 (2) SA 575 (T): referred to
S v Baleka and Others 1986 (1) SA 361 (T): referred to E
S v Mkhuzangewe 1987 (3) SA 248 (O): distinguished
Sita and Another v Olivier, NO, and Another 1967 (2) SA 442 (A): referred to.
Legislation cited
The Criminal Procedure Act 51 of 1977, s 118: see Juta's Statutes F of South Africa 2016/17 vol 1 at 2-356.
Case Information
Adv Maseti for the applicant.
Adv Cossie for the respondents.
An application for an order setting aside the 'recusal' of a magistrate who G had presided over the taking of a plea of not guilty, and an order setting aside the appointment of another magistrate in terms of s 118 of the Criminal Procedure Act 51 of 1977.
Order H
The application is dismissed with costs.
Judgment
Tokota J:
[1] The applicant, together with 10 others, (the accused), are facing I criminal charges before the Regional Magistrates' Court, Zwelitsha. The papers do not reveal what charges were preferred against them. Counsel for the applicant informed me from the bar that the accused are facing charges of fraud. What can be gleaned from the founding affidavit is that either on 31 August 2015 or 2 September 2015 the accused appeared before the first respondent. They all pleaded not guilty. I asked J
2018 (1) SACR p704
Tokota J
counsel A the exact date on which the accused pleaded. None of them knew the exact date. No basis of defence was disclosed. The matter was then postponed for trial.
[2] After several postponements, on 20 February 2017 the matter was again in court ready for trial, but the first respondent, before whom the B accused had initially pleaded, was not available. The matter came before the second respondent. I was informed by Mr Maseti, who represented the applicant, that the applicant was accused No 1 and was represented by an attorney, Mr Mphahlwa. On that date the parties agreed that the second respondent could proceed with the matter in terms of s 118 of C the Criminal Procedure Act 51 of 1977 (the CPA), as no evidence had been led before the first respondent. The state then called a witness to testify. After the testimony of this witness the matter was then adjourned to continue on the following day, 21 February 2017. On this day the legal representative of accused Nos 1, 2 and 3 withdrew. The matter was then postponed to 31 March 2017 to enable them (accused 1, 2 and 3) D to engage the services of another attorney.
[3] On 27 March 2017 the applicant launched these proceedings. He seeks an order:
That the decision of the first respondent to recuse herself in the matter be reviewed and set aside;
E that the appointment of the second respondent to preside in the matter be reviewed and set aside as unlawful;
that the proceedings of 20 February 2017 be reviewed...
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