Swart v Regional Magistrate Jonker and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo J
• Judgment Date: 14 July 2022
• Docket Number: 2881/2018
• Hearing Date: 12 July 2022
• Court: Mpumalanga Division, Mbombela
• Citation: 2022 JDR 1911 (MN)

Ratshibvumo J:

[1]

In this review application, the Applicant seeks this court's intervention in the criminal trial pending before the Regional Court in Piet Retief (court a quo), in terms of Rule 53 of the Uniform Rules. The First Respondent is the presiding judicial officer in that trial. In that trial, the Applicant faces a charge of rape in which his employee is the complainant. DNA samples were taken from him and evidence was led regarding the outcome after the same were compared to the DNA found in the swabs taken from the rape complainant. Two statements were presented in the trial; one indicating that the DNA in the swabs matched that of the complainant's boyfriend and another indicating that it matched that of the Applicant. The forensic analyst testified that the reference to the complainant's boyfriend was a mistake as he meant to make reference to the Applicant. Acting in terms of section 186 of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act), the First Respondent ordered that new DNA samples be obtained from the Applicant for comparison with the DNA obtained from the swabs, by a different forensic analyst. It is this decision that the Applicant seeks to have reviewed and set aside.

2022 JDR 1911 p3

Ratshibvumo J

[2]

The application is opposed by the Second Respondent for reasons that the Applicant failed to show that he would suffer irreparable harm unless an order setting aside the Magistrate's decision is granted and/or that the Magistrate's decision is not reviewable as he acted within his powers in terms of the Criminal Procedure Act.

[3]

Condonation was sought from the bar by the Applicant's counsel for lodging this application after the 180 days provided in Rule 53 had expired, counting from the date the Magistrate granted an application to have the matter taken on review. Failure to lodge the application within the stipulated time was blamed on the delay in getting the trial record transcribed. Although the proper procedure would have been for the condonation to be included in the notice of motion and for reasons thereof to be included in the affidavit, there is no prejudice any of the parties would suffer if the same is granted in this fashion. Instead, prejudice may ensue if the alternative request by the Applicant, to the effect that the application be postponed to a future date to allow him to prepare substantive application for condonation, since the criminal trial remains pending before the court a quo. Condonation for bringing the application beyond the prescribed period is therefore granted.

[4]

It is common cause that following the First Respondent's order referred to above, he clarified it further when he gave reasons for his decision saying he did not intend to have new evidence acquired and presented in a trial, but that the same DNA samples should be analysed by a different person and the results to be presented in a trial. If one looks at the trial record, this appears to have been a shift or change from the original order. [1] It is also common cause that the said analyses has been done and completed and the results have been

2022 JDR 1911 p4

Ratshibvumo J

disclosed to the Applicant's legal representative but not yet introduced as evidence...