S v Stoffels and Others (3/1022/02) [2003] ZAWCHC 62; 2004 (1) SACR 176 (C) (21 November 2003)

S v Stoffels and Others (3/1022/02) [2003] ZAWCHC 62; 2004 (1) SACR 176 (C) (21 November 2003)

The recusal of the magistrate constitutes an absolute supervening impossibility, rendering the part-heard proceedings a nullity. In such circumstances, the affected matters may commence de novo before another magistrate without the need for a High Court order setting aside the previous proceedings. Section 118 of the Criminal Procedure Act does not apply because evidence has already been adduced in each matter. The decision in S v Richter does not apply, as it concerned a situation without supervening impossibility and an irregular order by the magistrate. Accordingly, the 12 matters may proceed afresh before a different magistrate.

Citation
[2003] ZAWCHC 62
Parties
Applicant: THE STATE; Respondent: DANIEL STOFFELS & 11 OTHERS
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 November 2003
Case Number
3/1022/02
Procedural Posture
Review Application / Special Review
Outcome
The 12 part-heard matters are declared a nullity and may commence de novo before another magistrate.
Judges
P.B. Fourie, D.V. Dlodlo
Legal Topics
Recusal of Judicial Officer, Nullity of Proceedings, De Novo Trial
Criminal Law Civil Procedure Recusal of Judicial Officer Nullity of Proceedings De Novo Trial

Case Brief

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Parties

THE STATE

Applicant

DANIEL STOFFELS & 11 OTHERS

Respondent

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the recusal of the magistrate renders the part-heard proceedings a nullity.
  2. 2 Whether the 12 matters may commence de novo before another magistrate without a High Court order setting aside the earlier proceedings.
  3. 3 Whether section 118 of the Criminal Procedure Act applies where evidence has already been adduced.

Ratio Decidendi

The recusal of the magistrate constitutes an absolute supervening impossibility, rendering the part-heard proceedings a nullity. In such circumstances, the affected matters may commence de novo before another magistrate without the need for a High Court order setting aside the previous proceedings. Section 118 of the Criminal Procedure Act does not apply because evidence has already been adduced in each matter. The decision in S v Richter does not apply, as it concerned a situation without supervening impossibility and an irregular order by the magistrate. Accordingly, the 12 matters may proceed afresh before a different magistrate.

Court Disposition

The 12 part-heard matters are declared a nullity and may commence de novo before another magistrate.

Orders

  • Each of the 12 matters may commence de novo before another magistrate without an order of this court setting the earlier proceedings aside.