S v Gema and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Williams J and Lever J
• Judgment Date: 31 January 2022
• Citation: 2023 (1) SACR 304 (NCK)
• Docket Number: CA&R 4/2022
• Counsel: Counsel details not supplied
• Hearing Date: 21 January 2022
• Court: Northern Cape Division

Williams J (Lever J concurring):

[1] This matter has been referred for special review by the chief magistrate, Kimberley, with the request that the part-heard proceedings before retired magistrate Mr Prinsloo be set aside and that the proceedings against the two accused be ordered to commence de novo before a different magistrate.

[2] The accused, Horracious Gema and Godfrey Setlogelo, appeared before magistrate Prinsloo on a charge of assault with intent to do grievous bodily harm. The charge-sheet states that the complainant was stabbed with a knife and thrown stones at. A plea of not guilty was entered on behalf of the first accused after claiming self-defence, and the second accused pleaded not guilty.

[3] After the first witness (the complainant) had testified, the trial was postponed on various occasions for reasons of unavailability of counsel or witnesses, on the absence of the accused. Mr Prinsloo, who has since retired, still presided over one such postponement on 17 January 2020, when the matter was postponed to 6 April 2020. From 6 April 2020 many similar postponements ensued before different magistrates until 26 January 2021, when an email from Mr Prinsloo to chief magistrate Krieling, dated 20 January 2021, was read out in court by the presiding officer, which stated in effect that he (Mr Prinsloo) would not be finalising the current part-heard matter since he had relocated to Wilderness, some 750 kilometres away, and due to the risks involved in travelling brought about by the coronavirus.

[4] It appears from the correspondence of the chief magistrate that the matter was sent on special review during April 2021 already. Upon his enquiry as to the progress of the review, it was discovered that the original covering letter, charge-sheet and transcribed record had never reached the office of the registrar, hence the undue delay in this review being brought before us.

[5] The issue before us is whether this is a case where the interests of justice would warrant the setting-aside of the part-heard proceedings, so that the trial can commence de novo before another presiding officer.

Williams J (Lever J concurring)

[6] It needs no restatement that, where a magistrate, before conviction, has become unavailable due to death, retirement, discharge, resignation or other incapacity, the trial may proceed de novo before another magistrate, should the interests of justice so demand (see, inter alia, S v Bireke 2003 (2) SACR...