S v Scheepers

• Jurisdiction: South Africa
• Judge: Van Oosten J and Willis J
• Judgment Date: 25 November 2008
• Docket Number: 3283/2008
• Court: Witwatersrand Local Division
• Hearing Date: 25 November 2008
• Citation: 2009 (2) SACR 58 (W)

Willis J:

[1] This matter has been referred to me by way of special review in terms of s 304 of the Criminal Procedure Act 51 of 1977, as amended.

[2] The accused had been arraigned in the magistrates' court held at C Randfontein on one count of theft, of a bicycle valued at R1500. It was alleged that the offence occurred on 1 March 2007.

[3] The accused pleaded not guilty. He was released on warning. He elected to have the benefit of legal aid. The trial commenced on 5 April 2007. Evidence was led but the trial was postponed to 11 April 2007. On D this date the accused failed to appear at court. A warrant for his arrest was authorised. The accused was brought to court on 12 June 2007 and the matter postponed again to 15 June 2007. He was again released on warning. He failed to appear in court on 15 June 2007 and, once again, a warrant for his arrest was authorised. The accused was brought to court on 20 August 2007. The matter was postponed to 22 August 2007. E On this day the trial was postponed to 3 September 2007 and the accused was, once again, released on warning. The accused failed, yet again, to appear in court on 3 September 2007. Once again, a warrant for his arrest was authorised. On 15 October 2008 - more than a year later - the accused was brought to court. The matter was postponed to F 23 October 2008. The matter then came before the learned magistrate, Ms E Botha. In the meantime, the learned magistrate who had heard evidence relating to the charge of theft, Mr DJ Erasmus, had left the service of the Department of Justice. He now lives in England. No verdict had been reached in regard to the charge of theft. Ms Botha G sentenced the accused, now 21 years of age, to a fine of R900 or 90 days' imprisonment for his failure to appear in court on 3 September 2007. His excuse had been that he had been staying in Ventersdorp for the past year or so. The accused has not paid the fine and remains in custody. The question of the sentence of the fine or imprisonment for failure to appear in court has not been sent to the High Court for review. In any H event, against the background of events, even were this court to exercise its inherent powers of review, it cannot be found that this particular sentence is not in accordance with justice.

[4] Ms Botha has referred the matter to the High Court for special I review by reason of the fact that the trial in relation to the charge of theft cannot proceed before the magistrate who was seized with the matter, Mr Erasmus. Ms Botha has asked that the High Court, acting in terms of s 304(2) (c)(iii) of the Criminal Procedure Act, set aside the trial proceedings on the charge of theft and direct that the trial may commence de novo. J

Willis J

A [5] In R v Mhlanga 1959 (2) SA 220 (T) Claassen J and Boshoff J had to deal with a situation where a magistrate, who had heard some evidence, was transferred to a post in what was then known as South West...