S v Lesetedi (57/2002) [2002] ZANWHC 30 (18 July 2002)

S v Lesetedi (57/2002) [2002] ZANWHC 30 (18 July 2002)

The magistrate's prior involvement in granting a protection order based on the same facts as the current criminal charge creates a reasonable apprehension of bias. In accordance with established legal principles, the magistrate is entitled to recuse himself. Once the presiding officer becomes unavailable in the absolute sense due to recusal, the proceedings must be set aside and the trial may be resumed de novo before another magistrate if the prosecutor wishes to proceed.

Citation
[2002] ZANWHC 30
Parties
Applicant: The State; Respondent: Kedirileng Johannes Lesetedi
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
18 July 2002
Case Number
57/2002
Procedural Posture
Review Application / Special Review; Recusal of Magistrate
Outcome
Proceedings set aside due to magistrate's recusal; trial may be resumed de novo before another magistrate if the prosecutor wishes to proceed.
Judges
O.A. Pako
Legal Topics
Recusal of Judicial Officer, Reasonable Apprehension of Bias, Trial De Novo
Criminal Law Civil Procedure Recusal of Judicial Officer Reasonable Apprehension of Bias Trial De Novo

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Kedirileng Johannes Lesetedi

Respondent

Procedural Posture

Review Application / Special Review; Recusal of Magistrate

Legal Issues

  1. 1 Whether the magistrate should recuse himself due to prior involvement in related protection order proceedings.
  2. 2 Whether the proceedings should be set aside and the trial resumed de novo after the magistrate's recusal.

Ratio Decidendi

The magistrate's prior involvement in granting a protection order based on the same facts as the current criminal charge creates a reasonable apprehension of bias. In accordance with established legal principles, the magistrate is entitled to recuse himself. Once the presiding officer becomes unavailable in the absolute sense due to recusal, the proceedings must be set aside and the trial may be resumed de novo before another magistrate if the prosecutor wishes to proceed.

Court Disposition

Proceedings set aside due to magistrate's recusal; trial may be resumed de novo before another magistrate if the prosecutor wishes to proceed.

Orders

  • The proceedings in this case are set aside.
  • The trial may be resumed de novo before another magistrate if the prosecutor wishes to proceed with the matter.