S v Stuurman; S v Khonze (22/2021) [2021] ZAWCHC 159; 2021 (2) SACR 559 (WCC) (18 August 2021)

S v Stuurman; S v Khonze (22/2021) [2021] ZAWCHC 159; 2021 (2) SACR 559 (WCC) (18 August 2021)

The High Court held that where a regional magistrate who commenced criminal proceedings becomes unavailable due to appointment as a Judge, their jurisdiction in the matter ends and the proceedings are abortive and a nullity. There is no need for the High Court to set aside such proceedings; new proceedings may commence de novo before another regional magistrate. Section 304A of the Criminal Procedure Act does not apply as there was no conviction in either matter. The authorities cited confirm that the nullity arises ex lege and the High Court's intervention is unnecessary unless grave injustice would result, which is not the case here. Both matters are referred back to the relevant...

Citation
[2021] ZAWCHC 159
Parties
Applicant: The State; Respondent: Llewellyn Stuurman; Respondent: Xolo Joseph Khonze
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 August 2021
Case Number
22/2021
Procedural Posture
Criminal Review / High Court Review of Abortive Regional Court Proceedings
Outcome
The proceedings before the judicial officers who became Judges are declared abortive and a nullity. No orders are granted setting aside the proceedings. Both matters are referred back to the relevant Regional Courts for de novo proceedings.
Judges
M Pangarker, L Bozalek
Legal Topics
Jurisdiction of Magistrate, Nullity of Proceedings, Section 304a Review, Section 77 Enquiry, Unavailability of Presiding Officer
Criminal Law Civil Procedure Jurisdiction of Magistrate Nullity of Proceedings Section 304a Review Section 77 Enquiry Unavailability of Presiding Officer

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Parties

The State

Applicant

Llewellyn Stuurman

Respondent

Xolo Joseph Khonze

Respondent

Procedural Posture

Criminal Review / High Court Review of Abortive Regional Court Proceedings

Legal Issues

  1. 1 Are proceedings commenced before a regional magistrate who later becomes unavailable due to appointment as a Judge abortive and a nullity?
  2. 2 Is it necessary for the High Court to set aside such proceedings before a new trial or enquiry can commence?
  3. 3 Does section 304A of the Criminal Procedure Act apply to these circumstances?

Ratio Decidendi

The High Court held that where a regional magistrate who commenced criminal proceedings becomes unavailable due to appointment as a Judge, their jurisdiction in the matter ends and the proceedings are abortive and a nullity. There is no need for the High Court to set aside such proceedings; new proceedings may commence de novo before another regional magistrate. Section 304A of the Criminal Procedure Act does not apply as there was no conviction in either matter. The authorities cited confirm that the nullity arises ex lege and the High Court's intervention is unnecessary unless grave injustice would result, which is not the case here. Both matters are referred back to the relevant...

Court Disposition

The proceedings before the judicial officers who became Judges are declared abortive and a nullity. No orders are granted setting aside the proceedings. Both matters are referred back to the relevant Regional Courts for de novo proceedings.

Orders

  • No orders are granted setting aside the proceedings in S v XJ Khonze and S v L Stuurman.
  • Both matters are referred back to the relevant Regional Courts for de novo proceedings.