S v Lapping

• Jurisdiction: South Africa
• Judge: Cloete J and Marais J
• Judgment Date: 01 April 1998
• Citation: 1998 (1) SACR 409 (W)
• Hearing Date: 01 March 1998
• Court: Witwatersrand Local Division

Cloete J:

This matter came before us on special review. We set the proceedings aside to enable the Attorney - General - should he so decide - to prosecute the accused de novo before another magistrate and indicated that the reasons for the order would follow. These are the reasons. F

G The accused was charged with assault in the magistrate's court for the district of Randburg. On 11 March 1997 he pleaded not guilty before an additional magistrate ('the trial magistrate') and the complainant gave evidence. The matter was postponed to 21 August as the doctor whom the State wished to call was not available. On 21 August the matter was postponed to H 30 September by another additional magistrate, Mr Marais, because the trial magistrate was unavailable. On 30 September Mr Marais made the following notation on the record:

'On the instructions of the acting senior magistrate Ms Smith, the case has to start de novo. (The trial magistrate) not to continue with the case at all'

I and sent the matter on special review as there were, in his view, no grounds for the order which he made.

The chief magistrate of Randburg subsequently forwarded to me a copy of a telefax dated 15 October 1997 which had been received from the Department of Justice and was signed by the J Director - General, Justice, and also a request by Mr Marais that the proceedings be set aside

Cloete J

so that the trial could commence de novo before a magistrate other than the trial magistrate. A The relevant part of the telefax reads as follows:

'[I]n view of the fact that (the trial magistrate) was arrested on 22 September 1997 by the South African Police Service as well as the fact that the Attorney - General of the Witwatersrand Local Division has decided that (the trial magistrate) must stand trial in the regional court on fraud charges, it was attempted to transfer the officer as provided for in terms of Public Service Staff Code B B XIV/5.7(a). It was however approved that (the trial magistrate) in terms of s 22(7) of the Public Service Act, 1994 be suspended in service and not in emoluments with effect from 16 October 1997.

A condition of the suspension is that (the trial magistrate) is not allowed to enter the premises of the magistrate, Randburg except when she has to appear in court or at the misconduct hearing.' C

I furnished the accused's attorney with a copy of the telefax and asked that he inform me of his client's attitude to the request that the proceedings be set aside and that the trial commence de novo before another magistrate. The accused's attorney responded that as the trial magistrate D had been formally charged and has been suspended:

'(W)e do not feel that it would be appropriate for her to hear this matter. Furthermore at the last hearing on 30 September 1997, we were advised that it would not be possible for the matter to proceed before (the trial magistrate) and accordingly the matter was withdrawn from being before her and transferred to another court, for a hearing to start de novo on 17 November 1997.

Although our E client has been prejudiced by these undue delays, both emotionally and financially, we do understand that they have been occasioned by unusual circumstances.'

I have also discussed the position with the Attorney - General and the Deputy to whom he delegated the matter and the latter is of the view that the proceedings should be set aside F pending a decision as to whether the accused should be prosecuted de novo before another magistrate.

It is not possible for the proceedings to be set aside simply because a magistrate, the Attorney - General and the accused's attorney agree thereto. There are several examples in the last reports of proceedings being set aside where the incorrect procedure had been followed, even G with the consent of the accused. The most striking is perhaps in R v Price 1955 (1) SA 219 (A). In that matter, after a trial had run its course and the Court had adjourned to consider its verdict, one of the two assessors died. At a later sitting of the Court, at which the Judge presided, with the remaining assessor being present, the defence requested an order that the H case proceed before the Court as constituted. The request was supported by the Crown. Such an order was granted. The Court then adjourned and subsequently convicted the accused. After sentence had been passed a special entry was made as to whether the presiding Judge, notwithstanding the application made to that end on behalf of the appellant with the I concurrence of the Crown, had wrongly and irregularly ordered the proceedings to continue after the death of one of the assessors, inasmuch as there was, after his death, no longer a properly constituted Court. The Appellate Division held that the Court had not been properly constituted and the conviction and sentence were set aside. Greenberg JA said at 223D: J

Cloete J

A 'It was rightly not contended on behalf of the Crown that the appellant was precluded in any way, because of the request made on his behalf at the trial, from contending in this Court that the Court which had convicted him was not a properly constituted Court. If in fact the Court was not properly constituted then its verdict, and consequently also its sentence, are irregularities that cannot be waived by an accused person.'

B In R v Maseru Morai 1910 EDL 359 the trial was postponed after the Crown had closed its case. The evidence for the defence was heard by a magistrate other than the magistrate who had heard the evidence for the prosecution. The accused's attorney specifically consented to this procedure. Kotzè JP squashed the conviction on the basis that 'a serious irregularity in the C proceedings has taken place.'

In R v Norton 1917 TPD 3 a preparatory examination was conducted and the case had been remitted. It was held that the evidence taken at the preparatory examination had to be read, and could not be taken as read, even at the request of the accused. Because the latter course D had been adopted, the conviction and sentence were squashed on appeal. In that case the Court...