S v Monotshi

• Jurisdiction: South Africa
• Judge: E Bertelsmann J and TJ Raulinga J
• Judgment Date: 01 April 2014
• Docket Number: 647/14
• Court: Gauteng Division, Pretoria
• Hearing Date: 01 March 2014
• Citation: 2014 JDR 2092 (GP)

S v Monotshi
2014 JDR 2092 (GP)

2014 JDR 2092 p1

Citation	2014 JDR 2092 (GP)
Court	Gauteng Division, Pretoria
Case no	647/14
Judge	E Bertelsmann J and TJ Raulinga J
Heard	March 1, 2014
Judgment	April 1, 2014
Appellant/; Plaintiff	State
Respondent/; Defendant	Jabu Monotshi

Summary

Criminal law — Review — Special review in terms of s 304(4) of Criminal Procedure Act 51 of 1977— In what cases — Possibility of bias on part of magistrate as had resided over bail hearing and trial, had knowledge of previous convictions at trial stage — Also district court had no further jurisdiction to try matter referred to regional court — Proceedings reviewed and set aside.

Judgment

REVIEW JUDGMENT

1.

This matter was sent for a special review of the proceedings in the Magistrate's Court for the district of Hammanskraal by the Regional Court Gauteng. The accused was charged with housebreaking with the intent to steal and theft. According to the charge sheet he was arrested in April 2013.

2.

He applied for bail before the magistrate, Ms S Rapulane, in that district court. During these proceedings he disclosed what was called a relevant previous conviction for a similar offence. Bail was denied on 10 May 2013.

3.

When the accused appeared for trial in the same court on 24 June 2013, the prosecutor applied to have the trial referred to the Regional Court in the light of the accused's previous conviction. Such a request is apparently routinely

2014 JDR 2092 p2

made in circumstances of this nature by the prosecution in accordance with a directive issued by the Director of Public Prosecutions.

4.

Magistrate Rapulane acceded to the prosecutor's request. Clearly acting in accordance with section 115A of the Criminal Procedure Act 51 of 1977 (as amended) ("CPA"), the matter was transferred to the Regional Court.

5.

Rather surprisingly, this decision by the Magistrate was countermanded by another district magistrate, Mr Noeth, on the 14th August 2013 and the trial was returned to the district court presided over by Ms Rapulane. It is unclear on what grounds Mr Noeth felt himself called upon to make this decision, nor is there any indication of the relevant authority or empowering statutory provision he relied upon to overrule a decision of a colleague of the same rank as his own.

6

The trial proceeded before Ms Rapulane and the accused was convicted. In the light of his record the matter was again transferred to the Regional Court, this time for sentencing. The...