S v Skhosana and Others (41/2193/2008) [2014] ZAGPJHC 223; 2015 (1) SACR 526 (GJ) (18 September 2014)

S v Skhosana and Others (41/2193/2008) [2014] ZAGPJHC 223; 2015 (1) SACR 526 (GJ) (18 September 2014)

The incapacity of Mr BP Luyt, the acting magistrate, renders him unable to complete the part-heard criminal trials assigned to him. For matters that have reached conviction, section 275 of the Criminal Procedure Act permits sentencing to proceed before another magistrate without referral to the High Court. For matters that have not reached conviction, the proceedings are a nullity ex lege and must commence de novo before another magistrate; no formal order from the High Court is required. The nullity principle applies automatically when the presiding officer becomes unavailable due to incapacity, resignation, or death. The High Court does not need to set aside pre-conviction proceedings,...

Citation
[2014] ZAGPJHC 223
Parties
Applicant: The State; Respondent: JH Skhosana and 5 Others; Respondent: Of Motlatsi and 2 Others; Respondent: R Masilu and Another; Respondent: Z Mkhize and 2 Others; Respondent: P Mkhize and 3 Others; Respondent: A Kops; Respondent: MS Karim and Another; Respondent: M Ncube and Another; Respondent: M Moyo and 2 Others; Respondent: S Muyambu; Respondent: S Ndobe and 2 Others; Respondent: A Paulsen and 2 Others; Respondent: KJ Nkuna; Respondent: LR Reilly and 2 Others; Respondent: S Matchebele and Another; Respondent: EO Mosimanekgotla; Respondent: D Nqwenya and 2 Others; Respondent: B Mgana; Respondent: PA Sithole; Respondent: O Habiba; Respondent: J Nkwane; Respondent: T Ndou
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 September 2014
Case Number
41/2193/2008
Procedural Posture
Special Review / Pre Conviction and Post Conviction
Outcome
Special review granted. Directions issued for continuation or recommencement of trials as appropriate.
Judges
Victor, Satchwell
Legal Topics
Criminal Trial Nullity, Magistrate Incapacity, Sentence by Another Magistrate, Fair Trial Delay, Special Review Procedure
Criminal Law Civil Procedure Criminal Trial Nullity Magistrate Incapacity Sentence by Another Magistrate Fair Trial Delay Special Review Procedure

Case Brief

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Parties

The State

Applicant

JH Skhosana and 5 Others

Respondent

Of Motlatsi and 2 Others

Respondent

R Masilu and Another

Respondent

Z Mkhize and 2 Others

Respondent

P Mkhize and 3 Others

Respondent

A Kops

Respondent

MS Karim and Another

Respondent

M Ncube and Another

Respondent

M Moyo and 2 Others

Respondent

S Muyambu

Respondent

S Ndobe and 2 Others

Respondent

A Paulsen and 2 Others

Respondent

KJ Nkuna

Respondent

LR Reilly and 2 Others

Respondent

S Matchebele and Another

Respondent

EO Mosimanekgotla

Respondent

D Nqwenya and 2 Others

Respondent

B Mgana

Respondent

PA Sithole

Respondent

O Habiba

Respondent

J Nkwane

Respondent

T Ndou

Respondent

Procedural Posture

Special Review / Pre Conviction and Post Conviction

Legal Issues

  1. 1 Whether part-heard criminal trials before a magistrate who becomes incapacitated must be aborted and commenced de novo before another magistrate.
  2. 2 Whether post-conviction matters may proceed to sentencing before another magistrate without referral to the High Court.
  3. 3 Whether the High Court must formally set aside pre-conviction proceedings as a nullity or if this occurs ex lege.

Ratio Decidendi

The incapacity of Mr BP Luyt, the acting magistrate, renders him unable to complete the part-heard criminal trials assigned to him. For matters that have reached conviction, section 275 of the Criminal Procedure Act permits sentencing to proceed before another magistrate without referral to the High Court. For matters that have not reached conviction, the proceedings are a nullity ex lege and must commence de novo before another magistrate; no formal order from the High Court is required. The nullity principle applies automatically when the presiding officer becomes unavailable due to incapacity, resignation, or death. The High Court does not need to set aside pre-conviction proceedings,...

Court Disposition

Special review granted. Directions issued for continuation or recommencement of trials as appropriate.

Orders

  • Where the accused have already been convicted, sentencing may continue before another magistrate without pronouncement by the High Court.
  • Where part-heard trials have not reached conviction, proceedings are a nullity ex lege and can commence de novo before another magistrate without the necessity of an order from the High Court.