S v Hanekom (33999, 465/03, 15/478/03) [2003] ZAWCHC 67; 2004 (1) SACR 490 (C) (3 December 2003)

S v Hanekom (33999, 465/03, 15/478/03) [2003] ZAWCHC 67; 2004 (1) SACR 490 (C) (3 December 2003)

The summary termination of the employment contract of the acting magistrate resulted in his absolute unavailability to continue with the trial. Following established legal principles and case law, the unterminated proceedings became a nullity upon such termination. There is no requirement for a formal order setting aside the proceedings before the accused can be tried de novo before another magistrate. The accused cannot demand a verdict or raise a plea of lis pendens in respect of proceedings that have become a nullity due to the absolute unavailability of the presiding officer. The court therefore held that the accused may be tried before another magistrate without any order setting...

Citation
[2003] ZAWCHC 67
Parties
Applicant: The State; Respondent: Randall Hanekom
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
3 December 2003
Case Number
33999, 465/03, 15/478/03
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Unterminated proceedings before the trial magistrate are a nullity due to summary termination of his employment. The accused may be tried de novo before another magistrate without a formal order setting aside the previous proceedings.
Judges
N J Yekiso
Legal Topics
Unterminated Proceedings, Magistrate Unavailability, Nullity of Proceedings, Section 304 Review, Lis Pendens, Demand for Verdict
Criminal Law Civil Procedure Unterminated Proceedings Magistrate Unavailability Nullity of Proceedings Section 304 Review Lis Pendens Demand for Verdict

Case Brief

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Parties

The State

Applicant

Randall Hanekom

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Does the summary termination of a presiding magistrate's employment render unterminated criminal proceedings a nullity?
  2. 2 Is a formal order required to set aside such proceedings before the accused can be tried de novo before another magistrate?
  3. 3 Can an accused demand a verdict or raise a plea of lis pendens in respect of unterminated proceedings?

Ratio Decidendi

The summary termination of the employment contract of the acting magistrate resulted in his absolute unavailability to continue with the trial. Following established legal principles and case law, the unterminated proceedings became a nullity upon such termination. There is no requirement for a formal order setting aside the proceedings before the accused can be tried de novo before another magistrate. The accused cannot demand a verdict or raise a plea of lis pendens in respect of proceedings that have become a nullity due to the absolute unavailability of the presiding officer. The court therefore held that the accused may be tried before another magistrate without any order setting...

Court Disposition

Unterminated proceedings before the trial magistrate are a nullity due to summary termination of his employment. The accused may be tried de novo before another magistrate without a formal order setting aside the previous proceedings.

Orders

  • The accused may be tried before another magistrate without an order setting aside the unterminated proceedings.
  • No order is made for the unterminated proceedings to be set aside.