S v Nthoesane (R15/2022; A864/2021) [2022] ZAFSHC 92; 2022 (2) SACR 188 (FB) (12 May 2022)

S v Nthoesane (R15/2022; A864/2021) [2022] ZAFSHC 92; 2022 (2) SACR 188 (FB) (12 May 2022)

The High Court found that the retirement and ongoing illness of the presiding magistrate rendered him unavailable to finalize the part-heard matter. The accused had been in custody for almost eight months, and the delay was not attributable to him. Although the review was requested under Section 304(4) of the Criminal Procedure Act, which applies to finalized proceedings, the High Court exercised its inherent jurisdiction to review the matter. The authorities confirm that where a judicial officer is unavailable due to retirement, the trial is a nullity and must commence de novo before another magistrate. In the interests of justice and to avoid further unreasonable delay, the proceedings...

Citation
[2022] ZAFSHC 92
Parties
Applicant: The State; Respondent: Lerato Itumeleng Nthoesane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 May 2022
Case Number
A864/2021
Procedural Posture
Review Application / Special Review Under Inherent Jurisdiction
Outcome
Proceedings in the Kroonstad Magistrate Court under case number A864/2021 are reviewed and set aside. The trial must commence de novo before another magistrate.
Judges
Loubser, Molitsoane
Legal Topics
Criminal Procedure Act Section 304, Unreasonable Delay, Judicial Officer Unavailability
Criminal Law Civil Procedure Criminal Procedure Act Section 304 Unreasonable Delay Judicial Officer Unavailability

Case Brief

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Parties

The State

Applicant

Lerato Itumeleng Nthoesane

Respondent

Procedural Posture

Review Application / Special Review Under Inherent Jurisdiction

Legal Issues

  1. 1 Whether the proceedings before the magistrate should be set aside due to the retirement and illness of the presiding officer.
  2. 2 Whether the accused's right to a trial without unreasonable delay has been infringed.
  3. 3 Whether the High Court has jurisdiction to review proceedings not yet finalized.

Ratio Decidendi

The High Court found that the retirement and ongoing illness of the presiding magistrate rendered him unavailable to finalize the part-heard matter. The accused had been in custody for almost eight months, and the delay was not attributable to him. Although the review was requested under Section 304(4) of the Criminal Procedure Act, which applies to finalized proceedings, the High Court exercised its inherent jurisdiction to review the matter. The authorities confirm that where a judicial officer is unavailable due to retirement, the trial is a nullity and must commence de novo before another magistrate. In the interests of justice and to avoid further unreasonable delay, the proceedings...

Court Disposition

Proceedings in the Kroonstad Magistrate Court under case number A864/2021 are reviewed and set aside. The trial must commence de novo before another magistrate.

Orders

  • The proceedings in the Kroonstad Magistrate Court under case number A864/2021 are hereby reviewed and set aside.
  • The proceedings must commence de novo before another presiding officer as soon as possible.