S v Mkosana

• Jurisdiction: South Africa
• Judge: Van Zyl J and Ebrahim J
• Judgment Date: 19 September 2003
• Docket Number: Review CAR 31/03
• Court: Ciskei High Court
• Hearing Date: 19 September 2003
• Citation: 2004 (1) SACR 205 (Ck)

Van Zyl J:

[1] The accused in this matter was charged in the magistrate's court for the district of Zwelitsha with assault with intent to do grievous bodily harm. The trial commenced on 9 November 2001 and was presided over by Mr Vanqa, a magistrate stationed at the said D court. The accused pleaded not guilty to the charge. The State then proceeded to present the evidence of the complainant and one other witness, whereafter the matter was postponed and became partly heard. Before the trial was finalised, the services of the trial magistrate were terminated by reason of his retirement from active duty on 31 December 2002. E

[2] After the retirement of the trial magistrate the matter was postponed on several occasions. On one such occasion the magistrate then sitting, Mr Zantsi, was informed by the public prosecutor that

'endevours have been made to try and locate the P O Mr Vanqa to no avail and applies for a further postponement as other means will be F made to secure the attendance of the P O'.

At the last postponement of the matter it was once again presided over by Mr Zantsi, who recorded that the record of the proceedings was to be submitted to the High Court for further instructions. This was done by Mr Tetyana, a senior magistrate at the magistrate's court in question, who sent it on special review. He states in an accompanying G letter that attempts to secure the attendance of the trial magistrate were without success and he requests that the proceedings be set aside and that the case commence de novo before another magistrate.

[3] Once an accused has pleaded and the State commenced the leading of evidence, the trial magistrate is seized with the matter. If H the trial becomes partly heard on the merits it cannot proceed before another magistrate. This is so because of the principle contained in s 106(4) of the Criminal Procedure Act 51 of 1977, namely that an accused who has pleaded to a charge is entitled to demand to be tried and acquitted or convicted and sentenced by the court constituted and I appointed to hear the case, and by no other court or official. (See S v Gwala and Others 1969 (2) SA 227 (N); S v Mayisa 1983 (4) SA 242 (T); S v De Koker 1978 (1) SA 659 (O); S v Lapping 1998 (1) SACR 409 (W) and S v Polelo 2000 (2) SACR 734 (NC).) The practical justification for this principle was discussed by Rose-Innes J in S v Mphetshwa 1979 (1) SA 925 (Tk) at 926B - E. J

Van Zyl J

[4] There is no provision in the Criminal Procedure Act that A caters for the type of situation which has arisen in this matter. Section 118 of the Act does not assist. It only applies where the magistrate is unavailable at the stage immediately after a plea of not guilty, and, importantly, before evidence is led. Section 275, which provides that in certain instances sentence may be imposed by a magistrate other than the magistrate who tried and convicted the accused, similarly does not assist because the accused has not been B convicted. As correctly stated by Kennedy AJP in S v Gwala and Others (supra), these provisions serve to emphasise, rather than to derogate from the principle in s 106(4) of the Act. For a more comprehensive discussion of other related provisions in the Criminal Procedure Act, see the decision in S v Tlailane en 'n Ander 1982 (4) SA 107 (T). C

[5] An overview of the case law, however, shows that it is recognised that the occurrence of a number of events, which affect the ability of a trial magistrate to continue to preside over a trial where evidence has been led after the accused has pleaded, create an exception to the principle in s 106(4) of the Criminal Procedure Act. These events or situations can be divided into two categories. The D first is where the trial magistrate is permanently unable to or incapable of further presiding over a partly heard trial. Examples thereof are where the trial magistrate is deceased (S v Molowa 1998 (2) SACR 422 (C)); has correctly recused himself (Magubane v Van der Merwe NO 1969 (2) SA 417 (N)) or has resigned (S v De Koker (supra) and S v Polelo (supra)). E

[6] Where the magistrate is permanently unable to continue with the trial it results, without more, in the proceedings being regarded as abortive and they fall away. It is not necessary for a Superior Court to set them aside before a new trial can take place. (See S v de Koker (supra at 660H) and S v Polelo (supra at 736d).) F

[7] For partly heard proceedings to fall within the first category of cases, it is a requirement that the magistrate is no longer available in the 'absolute sense'. (See S v Makgetle; S v Matlowe and Another 1980 (4) SA 256 (B) at 257B - C.) In the De Koker decision supra at 660H the Court speaks of the 'impossibility' of the magistrate continuing and in S v Lapping (supra at 414a) of a G magistrate who is 'permanently' unable to continue with the trial. It is for this reason that it was held that where the trial magistrate has been transferred, and the necessary administrative arrangements can easily be effected in terms of the Magistrates' Courts Act 32 of 1944 for him to return and finalise a partly heard matter, the proceedings are not a nullity and the trial cannot resume de novo before H another magistrate (S v Gwala and Others (supra); S v Makgetle; S v Matlowe and Another (supra) and S v Tlailane en 'n Ander (supra)).

[8] The second category of cases deal with those situations where the incapacity of the trial magistrate to continue with the trial I is not necessarily permanent, but he or...