S v Mashaba (54/05) [2005] ZANWHC 33 (19 May 2005)

S v Mashaba (54/05) [2005] ZANWHC 33 (19 May 2005)

The court held that interruption of criminal proceedings for review before conviction is an extraordinary procedure not supported by the Criminal Procedure Act, except in limited circumstances to prevent injustice. The presiding magistrate failed to inform the parties of his intention to refer the matter for review and did not record their views, amounting to an unfair practice. However, the enquiry into the minor complainant's understanding of the oath, though brief, was sufficient given her age and affirmative response. No objection was raised by the defence regarding her competence. The facts did not justify interference on review, and the matter was remitted to the trial court for...

Citation
[2005] ZANWHC 33
Parties
Applicant: The State; Respondent: Mphojan Mashaba
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
19 May 2005
Case Number
54/05
Procedural Posture
Review Application / Pre Conviction Review
Outcome
No order is made; the matter is remitted to the trial court for continuation.
Judges
J H F Pistor, A A Landman
Legal Topics
Review of Criminal Proceedings, Oath Enquiry for Minor Witness, Inherent Jurisdiction, Gross Irregularity
Criminal Law Civil Procedure Review of Criminal Proceedings Oath Enquiry for Minor Witness Inherent Jurisdiction Gross Irregularity

Case Brief

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Parties

The State

Applicant

Mphojan Mashaba

Respondent

Procedural Posture

Review Application / Pre Conviction Review

Legal Issues

  1. 1 Whether a criminal trial may be interrupted for review before conviction under the Criminal Procedure Act.
  2. 2 Whether the enquiry into the complainant's understanding of the oath was sufficient for a minor witness.
  3. 3 Whether failure to inform parties of the intention to refer the matter for review constitutes an unfair practice.

Ratio Decidendi

The court held that interruption of criminal proceedings for review before conviction is an extraordinary procedure not supported by the Criminal Procedure Act, except in limited circumstances to prevent injustice. The presiding magistrate failed to inform the parties of his intention to refer the matter for review and did not record their views, amounting to an unfair practice. However, the enquiry into the minor complainant's understanding of the oath, though brief, was sufficient given her age and affirmative response. No objection was raised by the defence regarding her competence. The facts did not justify interference on review, and the matter was remitted to the trial court for...

Court Disposition

No order is made; the matter is remitted to the trial court for continuation.

Orders

  • The matter is remitted to the trial court to be proceeded with by that court.