S v Gema and Another (CA&R 4/2022) [2022] ZANCHC 5; 2023 (1) SACR 304 (NCK) (31 January 2022)

S v Gema and Another (CA&R 4/2022) [2022] ZANCHC 5; 2023 (1) SACR 304 (NCK) (31 January 2022)

The court found that although there was an inordinate delay in bringing the review, there was no evidence that witnesses would be untraceable or that the accused suffered substantial prejudice. The interests of justice require balancing the rights of the accused, the victims, and the broader community. Since the first accused was serving a sentence on another matter and the second accused was out on warning, and the record was available, the interests of justice are best served by setting aside the part-heard proceedings and allowing the trial to commence de novo before a different magistrate.

Citation
[2022] ZANCHC 5
Parties
Applicant: The State; Respondent: Horracious Gema; Respondent: Godfrey Setlogelo
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
31 January 2022
Case Number
CA&R 4/2022
Procedural Posture
Review Application / Special Review of Part Heard Criminal Proceedings
Outcome
The part-heard proceedings before retired magistrate Mr Prinsloo are set aside. The trial is to commence de novo before a different magistrate if the Prosecuting Authority so determines.
Judges
Williams, Lever
Legal Topics
Fair Trial Rights, Trial De Novo, Magistrate Unavailability, Delay in Proceedings
Criminal Law Civil Procedure Fair Trial Rights Trial De Novo Magistrate Unavailability Delay in Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Horracious Gema

Respondent

Godfrey Setlogelo

Respondent

Procedural Posture

Review Application / Special Review of Part Heard Criminal Proceedings

Legal Issues

  1. 1 Whether the part-heard proceedings before the retired magistrate should be set aside.
  2. 2 Whether the trial should commence de novo before a different magistrate.
  3. 3 Whether the delay in bringing the review infringed the accused's right to a fair and speedy trial.

Ratio Decidendi

The court found that although there was an inordinate delay in bringing the review, there was no evidence that witnesses would be untraceable or that the accused suffered substantial prejudice. The interests of justice require balancing the rights of the accused, the victims, and the broader community. Since the first accused was serving a sentence on another matter and the second accused was out on warning, and the record was available, the interests of justice are best served by setting aside the part-heard proceedings and allowing the trial to commence de novo before a different magistrate.

Court Disposition

The part-heard proceedings before retired magistrate Mr Prinsloo are set aside. The trial is to commence de novo before a different magistrate if the Prosecuting Authority so determines.

Orders

  • The part-heard trial before retired magistrate Mr Prinsloo is set aside.
  • The proceedings are to commence de novo before a different magistrate should the Prosecuting Authority so determine.