Moshe v Pako: Regional Court Magistrate and Another (2510/10) [2011] ZANWHC 30 (27 June 2011)
The court found that the matter, although not explicitly stated as a review in the Notice of Motion, was in substance a review application. According to the Rules of Court and Practice Directives, such matters must be heard before two judges. Since the matter was erroneously set down on the unopposed roll and before...
Source-derived case information.
- Citation
- [2011] ZANWHC 30
- Parties
- Applicant: Alfred Tshwaro Moshe; Respondent: Mr Pako: Regional Court Magistrate; Respondent: The Director of Public Prosecutions: North West Province
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 2510/10
- Procedural Posture
- Review Application / Postponement for Proper Enrollment Before Two Judges
- Outcome
- The matter is postponed sine die and costs are reserved.
- Judges
- Hendricks
- Legal Topics
- Recusal of Judicial Officer, Review Proceedings, Proper Enrollment of Review
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Tshwaro Moshe
Applicant
Mr Pako: Regional Court Magistrate
Respondent
The Director of Public Prosecutions: North West Province
Respondent
Procedural Posture
Review Application / Postponement for Proper Enrollment Before Two Judges
Legal Issues
- 1 Whether the first respondent's refusal to recuse himself as presiding officer should be set aside.
- 2 Whether the trial should commence de novo before another magistrate.
- 3 Whether the matter was properly enrolled and set down for hearing before the correct number of judges.
Ratio Decidendi
The court found that the matter, although not explicitly stated as a review in the Notice of Motion, was in substance a review application. According to the Rules of Court and Practice Directives, such matters must be heard before two judges. Since the matter was erroneously set down on the unopposed roll and before a single judge, it was not properly enrolled. The court therefore postponed the matter sine die to allow for proper enrollment before two judges.
Court Disposition
The matter is postponed sine die and costs are reserved.
Orders
- The matter is postponed sine die.
- Costs are reserved.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE NORTH WEST HIGH COURT, MAFIKENG
CASE NO: 2510/10
In the matter between:-
ALFRED TSHWARO MOSHE …........................................................................Applicant
and
MR PAKO: REGIONAL COURT MAGISTRATE …...............................First Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS:
NORTH WEST PROVINCE …..........................................................Second Respondent
CIVIL MATTER
DATE OF HEARING : 23 JUNE 2011
DATE OF JUDGMENT : 27 JUNE 2011
COUNSEL FOR THE APPLICANT : ADV BEHARIE
COUNSEL FOR THE FIRST RESPONDENT : ADV SENATLE
COUNSEL FOR THE SECOND RESPONDENT : ADV NDIMANDE
JUDGMENT
___________________________________________________________________
HENDRICKS J
[1] This matter came before me on the unopposed Motion Roll on 23 June 2011. The Notice of Motion reads:-
“1. Setting aside the First Respondent’s refusal on 21 April 2010 to recuse himself as the presiding officer in Regional Court Case Number RC154/04;
2. That the First Respondent recuse himself as the presiding officer;
3. That the trial commence de novo before another magistrate;
4. Costs of suit against the First and Second Respondent (in the event of opposition);
5. Further and/or alternative relief.”
[2] At the hearing of this matter, a bundle of documents and heads of argument on behalf of the Applicant was handed up from the bar. It became apparent during argument that not only was the matter opposed (which was erroneously set down on the unopposed roll) but it is also a review, although not specifically stated as such in the Notice of Motion.
[3] In terms of the Rules of Court and the Practice Directives, this matter should have been set down for hearing before two (2) Judges of this Division. For the aforementioned reason, I am inclined to postpone this matter sine die in order for it to be properly enrolled for hearing before two Judges.
Order:-
[4] Consequently, the following order is made:-
[i] The matter is postponed sine die.
[ii] Costs is reserved.
R D HENDRICKS
JUDGE OF THE HIGH COURT
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