S v Diswane (B349/2023) [2024] ZAGPPHC 587 (25 January 2024)

S v Diswane (B349/2023) [2024] ZAGPPHC 587 (25 January 2024)

The High Court held that the recusal of the magistrate rendered him absolutely unavailable, resulting in the part-heard proceedings being a nullity and set aside ex lege. There is no need for the High Court to exercise its inherent jurisdiction to set aside such proceedings, nor to order that they commence de novo. The authority to recommence proceedings rests solely with the National Prosecuting Authority, which may decide whether to re-indict the accused. The judgment emphasized that referring such matters for special review is unnecessary and burdensome, particularly where the accused's constitutional rights may be prejudiced by delays. The judgment also highlighted a statutory lacuna...

Citation
[2024] ZAGPPHC 587
Parties
Applicant: The State; Respondent: Kgololosego Diswane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 January 2024
Case Number
B349/2023
Procedural Posture
Special Review / Post Plea, Pre Conviction
Outcome
Special review dismissed; proceedings are a nullity and set aside ex lege upon recusal.
Judges
K Strydom, M.P. Motha
Legal Topics
Recusal of Judicial Officer, Nullity of Proceedings, Inherent Jurisdiction, Commencement De Novo, Criminal Procedure Act Lacuna
Criminal Law Civil Procedure Recusal of Judicial Officer Nullity of Proceedings Inherent Jurisdiction Commencement De Novo Criminal Procedure Act Lacuna

Case Brief

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Parties

The State

Applicant

Kgololosego Diswane

Respondent

Procedural Posture

Special Review / Post Plea, Pre Conviction

Legal Issues

  1. 1 Whether the recusal of the presiding magistrate renders the part-heard proceedings a nullity.
  2. 2 Whether the High Court must set aside the proceedings and order that they commence de novo.
  3. 3 Whether the National Prosecuting Authority or the High Court has the authority to recommence proceedings after recusal.

Ratio Decidendi

The High Court held that the recusal of the magistrate rendered him absolutely unavailable, resulting in the part-heard proceedings being a nullity and set aside ex lege. There is no need for the High Court to exercise its inherent jurisdiction to set aside such proceedings, nor to order that they commence de novo. The authority to recommence proceedings rests solely with the National Prosecuting Authority, which may decide whether to re-indict the accused. The judgment emphasized that referring such matters for special review is unnecessary and burdensome, particularly where the accused's constitutional rights may be prejudiced by delays. The judgment also highlighted a statutory lacuna...

Court Disposition

Special review dismissed; proceedings are a nullity and set aside ex lege upon recusal.

Orders

  • The mero motu recusal of the additional magistrate, Mr Raath, on 10 November 2023, rendered him unavailable to preside over this matter in the absolute sense.
  • The proceedings thus far are a nullity and were set aside ex lege upon the recusal of Magistrate Raath.