S v Moema (Review) (HC02/2025) [2025] ZANWHC 36 (11 February 2025)

S v Moema (Review) (HC02/2025) [2025] ZANWHC 36 (11 February 2025)

The recusal of Magistrate Tsoku after evidence had been led rendered her absolutely unavailable to continue with the trial, making her functus officio. Section 118 of the Criminal Procedure Act does not permit continuation of the trial before another magistrate in these circumstances, as evidence had already been adduced. The proceedings are therefore a nullity and must be set aside. The matter is referred back to the National Prosecuting Authority to determine whether to institute proceedings de novo before a different presiding officer. The accused cannot demand a verdict at this stage, as the proceedings have been invalidated by the recusal.

Citation
[2025] ZANWHC 36
Parties
Applicant: The State; Respondent: Andries Moema
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
11 February 2025
Case Number
HC02/2025
Procedural Posture
Review Application / Special Review; Part Heard Criminal Trial
Outcome
Proceedings set aside; matter referred to the National Prosecuting Authority for decision on de novo prosecution.
Judges
T Masike, FMM Reid
Legal Topics
Recusal of Judicial Officer, Nullity of Proceedings, Right to Fair Trial, De Novo Trial
Criminal Law Civil Procedure Recusal of Judicial Officer Nullity of Proceedings Right to Fair Trial De Novo Trial

Case Brief

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Parties

The State

Applicant

Andries Moema

Respondent

Procedural Posture

Review Application / Special Review; Part Heard Criminal Trial

Legal Issues

  1. 1 Whether the recusal of the presiding magistrate renders the proceedings a nullity.
  2. 2 Whether the trial may be continued before another magistrate after evidence has been led.
  3. 3 What procedural rights accrue to the accused following the magistrate's recusal.

Ratio Decidendi

The recusal of Magistrate Tsoku after evidence had been led rendered her absolutely unavailable to continue with the trial, making her functus officio. Section 118 of the Criminal Procedure Act does not permit continuation of the trial before another magistrate in these circumstances, as evidence had already been adduced. The proceedings are therefore a nullity and must be set aside. The matter is referred back to the National Prosecuting Authority to determine whether to institute proceedings de novo before a different presiding officer. The accused cannot demand a verdict at this stage, as the proceedings have been invalidated by the recusal.

Court Disposition

Proceedings set aside; matter referred to the National Prosecuting Authority for decision on de novo prosecution.

Orders

  • The proceedings in the Magistrate’s Court for the District of Odi under case number RE2510/2023 before Magistrate Tsoku are set aside.
  • The matter is referred back to the office of the National Prosecuting Authority to decide whether to commence proceedings against Mr. Moema de novo before any presiding officer other than Magistrate Tsoku.