Mpashe v The State (179/2017) [2017] ZAGPPHC 956 (3 July 2017)

Mpashe v The State (179/2017) [2017] ZAGPPHC 956 (3 July 2017)

The court held that the applicant's review application was procedurally defective, as it did not comply with Rule 53 of the High Court Rules and section 22 of the Superior Courts Act. The application was brought prematurely, before conviction or sentence, and without requesting the recusal of the Presiding Magistrate. The record revealed no evidence of bias or unfairness by the magistrate. The failure to properly cite the magistrate as a respondent and the lack of compliance with procedural requirements amounted to an abuse of process. The court found no exceptional circumstances or substantial prejudice to justify intervention at this stage and struck the application from the roll.

Citation
[2017] ZAGPPHC 956
Parties
Applicant: Edwin Mpashe; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 July 2017
Case Number
179/2017
Procedural Posture
Review Application / Special Review Prior to Conviction or Sentence
Outcome
Application for special review struck from the roll.
Judges
De Vos, Molefe
Legal Topics
Review Proceedings, Rule 53 Compliance, Recusal, Abuse of Process
Criminal Law Civil Procedure Review Proceedings Rule 53 Compliance Recusal Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Edwin Mpashe

Applicant

The State

Respondent

Procedural Posture

Review Application / Special Review Prior to Conviction or Sentence

Legal Issues

  1. 1 Whether a special review application may be brought before conviction or sentence in criminal proceedings.
  2. 2 Whether the applicant complied with Rule 53 of the High Court Rules and section 22 of the Superior Courts Act.
  3. 3 Whether the conduct of the magistrate amounted to bias or a failure of justice justifying intervention before judgment.

Ratio Decidendi

The court held that the applicant's review application was procedurally defective, as it did not comply with Rule 53 of the High Court Rules and section 22 of the Superior Courts Act. The application was brought prematurely, before conviction or sentence, and without requesting the recusal of the Presiding Magistrate. The record revealed no evidence of bias or unfairness by the magistrate. The failure to properly cite the magistrate as a respondent and the lack of compliance with procedural requirements amounted to an abuse of process. The court found no exceptional circumstances or substantial prejudice to justify intervention at this stage and struck the application from the roll.

Court Disposition

Application for special review struck from the roll.

Orders

  • The application for a special review is struck from the roll.
  • The matter is to proceed before the same Magistrate at a time and place to be arranged by the Prosecutor, subject to the accused's right to institute review proceedings afresh in terms of Rule 53 of the High Court Rules.