S v Molelekwa (25/02) [2002] ZANWHC 11 (2 May 2002)

CA NO. 25/02

IN

THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

THE STATE

vs

OUPA MOLELEKWA

REVIEW

Pako AJ: This is a part-heard case which came before me on review. The accused was charged with assault with intent to do grievous bodily harm. The only evidence tendered is that of the complainant. The accused had elected to testify but when the case was sent for review he had not yet testified. Because Section 304 (4) or Section 304 A of Act 51 of 1977 does not allow for review of proceedings before an accused has been convicted, I requested the magistrate to provide me with reasons as to why this case was sent for review. The record of the proceedings could not provide me with any reason.

The reasons supplied by the Head of the Judiciary at Molopo Magistrate office, is that the case was sent for review for the purpose of setting the proceedings aside and for trial to start de novo because the services of the presiding magistrate were terminated before the finalisation of this case. This means that the presiding officer was unavailable.

In that event I have the inherent common-law powers to review this matter. The prevailing view is that the court has the power to review the unterminated proceedings in the lower courts only where grave injustice might otherwise result or where justice cannot be attained by other means. See in this respect Ismail and

Others v Additional Magistrate, Wynbert and Another 1963 (1) SA 1 (A), S v Taylor 1976(4) SA 185 (T), S v Mametja 1979(1) SA 767 (T) and S v Burns and Another 1988(3) SA 366 (C).

It is trite law that the unavailability or absence of the presiding officer before conviction gives rise to the opening of a case de novo against an accused person. In this regard See S v Gwala and Others 1969(2) SA 227 (N) 228H - 229A-B. It is generally accepted that “absent” meant any material form of absence (including transfer, leave, where it will cause great inconvenience to recall the officer, death, serious illness, where the officer has recused himself, his resignation or dismissal). In this regard see S v Gwala (supra); S v Makgetle & S v Matlowe and Another 1980 (4) SA 256 (BSC) and S v Martin Mokaila CA 45/98 (BPD) (unreported judgment of Mogoeng J delivered on 12 March 1998).

In the present case the services of the presiding officer were terminated. He is, therefore, in the absolute sense unavailable. In terms of the decision of S v Gwala (Supra at 229B) and S v Makgetle (Supra at 257 B-C) the proceedings in this present case are abortive and logically a nullity. It will then be fair and in the interest of justice to set aside the proceedings in the present case and to order that trial should start de novo.

In the result, the proceedings are set aside and the matter is referred back for trial to start de novo if the prosecution so wishes.

O.A. PAKO

ACTING JUDGE OF THE HIGH COURT

I agree

M.W. FRIEDMAN

JUDGE PRESIDENT OF THE HIGH COURT

DATED: 02 MAY 2002