Rakimana v S (REV27/2021) [2021] ZALMPPHC 89 (28 April 2021)

Rakimana v S (REV27/2021) [2021] ZALMPPHC 89 (28 April 2021)

The court held that the mere retirement of a magistrate does not render him absolutely unavailable to conclude a trial commenced before retirement. Section 9(7)(a) of the Magistrates' Court Act specifically provides for continuity, allowing a retired magistrate to dispose of unterminated proceedings. The accused's right to a speedy trial under section 35(3)(d) of the Constitution would be infringed by requiring the trial to start de novo, especially where extensive evidence has already been led. Only in cases of absolute unavailability, such as death, recusal, or mental incapacity, should proceedings be set aside and recommenced. In this case, Mr Maluleke remains available to resume and...

Citation
[2021] ZALMPPHC 89
Parties
Applicant: Kagiso Rakimana; Respondent: The State
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
28 April 2021
Case Number
REV27/2021
Procedural Posture
Criminal Review / Special Review
Outcome
The trial proceedings are to be resumed before Magistrate Mr. M.D Maluleke with immediate effect; the proceedings are not declared a nullity and will not commence de novo.
Judges
MG Phatudi, EM Makgoba
Legal Topics
Continuity of Presiding Officer, Right to Speedy Trial, Magistrates Court Act, Criminal Procedure Act, Unavailability Test
Criminal Law Civil Procedure Continuity of Presiding Officer Right to Speedy Trial Magistrates Court Act Criminal Procedure Act Unavailability Test

Case Brief

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Parties

Kagiso Rakimana

Applicant

The State

Respondent

Procedural Posture

Criminal Review / Special Review

Legal Issues

  1. 1 Whether a retired magistrate is legally 'available' to conclude a trial commenced prior to retirement.
  2. 2 Whether the proceedings should be declared a nullity and the trial commence de novo before another presiding officer.
  3. 3 Whether the accused's right to a speedy trial under section 35(3)(d) of the Constitution is infringed by requiring a new trial.

Ratio Decidendi

The court held that the mere retirement of a magistrate does not render him absolutely unavailable to conclude a trial commenced before retirement. Section 9(7)(a) of the Magistrates' Court Act specifically provides for continuity, allowing a retired magistrate to dispose of unterminated proceedings. The accused's right to a speedy trial under section 35(3)(d) of the Constitution would be infringed by requiring the trial to start de novo, especially where extensive evidence has already been led. Only in cases of absolute unavailability, such as death, recusal, or mental incapacity, should proceedings be set aside and recommenced. In this case, Mr Maluleke remains available to resume and...

Court Disposition

The trial proceedings are to be resumed before Magistrate Mr. M.D Maluleke with immediate effect; the proceedings are not declared a nullity and will not commence de novo.

Orders

  • The trial proceedings pending under case no: 314/2014 Molemole District, held at Morobeng, are to be resumed before Magistrate Mr. M.D Maluleke with immediate effect.
  • The Registrar of this court is directed to forward a copy of this judgment to the Chief Magistrate, Limpopo, and to all heads of Magistrate's court, Limpopo Province.