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South Africa Judgment

North Gauteng High Court, Pretoria

S v Ngcobo (A186/15) [2015] ZAGPPHC 193 (1 April 2015)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The High Court determined that, although the matter did not fall within the normal review powers under the Criminal Procedure Act, the court was empowered by section 16 of the Domestic Violence Act and the Superior Courts Act to review the proceedings. The suspension of the magistrate created an injustice, as judgment could not be delivered and the parties were left in uncertainty. To rectify this, the proceedings were set aside and the matter was referred back for a trial de novo before another magistrate, ensuring that justice would be served and the parties' rights protected.

Court disposition

Proceedings before the magistrate are set aside and the matter is referred back for trial de novo before another magistrate.

Orders

  • The proceedings before the magistrate are set aside.
  • The matter is referred back to the magistrate for trial de novo before another magistrate.

02

Material facts

Parties

The State

Applicant

Poppy G Ngcobo

Respondent

Benson Bhuda

Respondent

03

Procedural history

  1. Posture

    Review Application / Review Judgment Following Referral by Magistrate

04

Questions and positions

Legal issues

Party arguments

Applicant
The Director of Public Prosecutions argued that these were not criminal proceedings subject to review under section 302 of the Criminal Procedure Act. The applicant contended that the delay and uncertainty caused by the magistrate's suspension resulted in an injustice that required intervention by the High Court under its inherent powers.
Respondent
The magistrate acknowledged that the inability to deliver judgment due to suspension created an injustice. The respondent supported the referral of the matter for review and the setting aside of the proceedings so that the matter could be heard afresh before another magistrate.

05

Court’s reasoning

  1. 01

    Domestic Violence Act 116 of 1998

    Section 16 of the Domestic Violence Act provides that the provisions regarding appeal and review in the Magistrates Court Act and the Supreme Court Act apply to proceedings under the Act.

  2. 02

    Superior Courts Act 10 of 2013

    The Superior Courts Act grants the High Court jurisdiction to review proceedings of lower courts and to exercise inherent powers to ensure justice is done.

06

Ratio, limits and disposition

Ratio decidendi

The High Court determined that, although the matter did not fall within the normal review powers under the Criminal Procedure Act, the court was empowered by section 16 of the Domestic Violence Act and the Superior Courts Act to review the proceedings. The suspension of the magistrate created an injustice, as judgment could not be delivered and the parties were left in uncertainty. To rectify this, the proceedings were set aside and the matter was referred back for a trial de novo before another magistrate, ensuring that justice would be served and the parties' rights protected.

Obiter and limits

  • The court noted that the delay and uncertainty caused by the magistrate's suspension was prejudicial to the parties and contrary to the interests of justice.
  • The inherent powers of the High Court may be invoked to remedy procedural injustices even where statutory review provisions do not strictly apply.

Court disposition

Proceedings before the magistrate are set aside and the matter is referred back for trial de novo before another magistrate.

  • The proceedings before the magistrate are set aside.
  • The matter is referred back to the magistrate for trial de novo before another magistrate.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2015] ZAGPPHC 193

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DATE: 1 April 2015

Case No: A186/2015

Not reportable

Not of interest to other judges

Magistrate

Case No: 183/2014

High Court Ref No: 746/2014

THE STATE V POPPY G NGCOBO / BENSON BHUDA

REVIEW JUDGMENT

PRELLER. J

The Magistrate of Delmas forwarded the proceedings in this case to the Registrar with a request that same be reviewed and set aside and returned to be heard de novo before another Magistrate.

The proceedings arise from the opposed return day of a provisional protection order in terms of the Domestic Violence Act 116 of 1998. The problem arose when the Magistrate concerned reserved her judgment after the completion of the proceedings but was suspended pending investigations before it could be delivered.

As pointed out by the Director of Public Prosecutions these were not criminal proceedings which would be subject to a review in terms of section 302 of the Criminal Procedure Act. There was no indication when the investigation against the Magistrate will be finalised and when she would be able to deliver her judgment, if ever. As correctly pointed out by the Magistrate this resulted in an injustice which has to be rectified.

Section 16 of Act 116 of 1998 provides:

“The provisions in respect of appeal and review contemplated in the Magistrates Court Act 1944 and the Supreme Court Act 59 of 1959 apply to any proceedings in terms of this Act.”

The Supreme Court Act of 1959 has been replaced by the Superior Court Act 10 of 2013 which provides in section 21(1 )(b) that this court has jurisdiction over all persons being in and in relations to all causes arising and offences triable within its area of jurisdiction and has the power to review the proceedings of all such courts. The magistrate has in my view correctly pointed out that even though this matter does not fall within the normal review powers of this court the court should in the exercise of its inherent powers do what is necessary to ensure that justice is done.

The following order is made:

The proceedings before the magistrate are set aside and the matter is referred back to the magistrate for trial de novo before another magistrate.

F

G PRELLER

JUDGE

OF THE HIGH COURT

I agree

H

J FABRICIUS

It is so ordered

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Domestic Violence Act 116 of 1998

Legislation

Legislation referenced in the available case record.

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

Magistrates Court Act 32 of 1944

Legislation

Legislation referenced in the available case record.

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