S v Buda (A502/2013) [2013] ZAGPPHC 190 (9 July 2013)
- Citation
- [2013] ZAGPPHC 190
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- E.M Makgoba, S.P Mothle
- Case number
- A502/2013
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- E.M Makgoba, S.P Mothle
- Case number
- A502/2013
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the absence of the trial record and the unavailability of the trial magistrate rendered it impossible to proceed with sentencing or finalisation. In such circumstances, justice requires that the proceedings be set aside to avoid prejudice to the accused and to ensure a fair trial. The matter should commence de novo before another magistrate if the State elects to continue with prosecution.
Court disposition
Proceedings before Magistrate Du Plessis set aside; trial to commence de novo before another magistrate if the State proceeds.
Orders
- The proceedings before Magistrate Du Plessis are set aside.
- The trial shall start de novo before another magistrate should the State wish to proceed with prosecution.
02
Material facts
Parties
The State
ApplicantPiet Johannes Buda
Respondent03
Procedural history
Posture
Criminal Law Review / Special Review After Conviction and Abscondment
04
Questions and positions
Legal issues
- 01
Whether the proceedings before Magistrate Du Plessis should be set aside due to the loss of trial records and the absence of the trial magistrate.
- 02
Whether a new trial should be ordered if the State wishes to proceed.
Party arguments
- Applicant
- The Regional Court Magistrate requested that the proceedings before Magistrate Du Plessis be set aside because the trial records (cassettes) were lost and the trial magistrate had relocated to Australia, making it impossible to proceed.
- Respondent
- No formal argument was presented by the respondent; the matter was submitted for special review at the instance of the magistrate.
05
Court’s reasoning
Legal principles
- 01
S v Chabedi 2005 (1) SACR 415 (SCA)
Where the trial record is irretrievably lost and the presiding magistrate is unavailable, the proceedings may be set aside and a new trial ordered.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the absence of the trial record and the unavailability of the trial magistrate rendered it impossible to proceed with sentencing or finalisation. In such circumstances, justice requires that the proceedings be set aside to avoid prejudice to the accused and to ensure a fair trial. The matter should commence de novo before another magistrate if the State elects to continue with prosecution.
Obiter and limits
- The diligent search for the missing cassettes was noted, but their loss was ultimately irreparable.
- The relocation of the trial magistrate to Australia further complicated the possibility of reconstructing the record.
Court disposition
Proceedings before Magistrate Du Plessis set aside; trial to commence de novo before another magistrate if the State proceeds.
- The proceedings before Magistrate Du Plessis are set aside.
- The trial shall start de novo before another magistrate should the State wish to proceed with prosecution.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
The Magistrate
BENONI Review 05/13
Case No: SH560/06
CASE NO:A502/2013
DATE:09/07/2013
THE STATE / PIET JOHANNES BUDA
REVIEW
JUDGEMNET
MAKGOBA, J:
[1] This matter came before me on special review at the instance of the Regional Court Magistrate, Benoni.
[2] The accused was tried and convicted before Regional Court Magistrate, Ms Du Plessis on 22 July 2007. Subsequent to the postponement of the matter for a pre-sentence report the accused absconded.
[3 The accused was traced, arrested and brought before court on
28 February 2013. Upon retrieval of the charge sheet it was discovered that the cassettes have been misplaced and despite diligent search same could not be found.
[4] The trial magistrate who convicted the accused has since relocated to Australia. The magistrate who is presently seized with the matter is unable to proceed and finalise the case.
[5] The magistrate accordingly submitted this matter on special review with the request that the proceedings before Magistrate Du Plessis be set aside.
[6] I accordingly grant an order that the proceedings be and are hereby set aside and that the trial starts de novo before another magistrate should the State desire to proceed with the prosecution of the accused.
E.M MA^GO^A
JUDGE
OF THE HIGH COURT
I agree,
S.P
MOTHLE
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