S v Thaele and Others, S v Pane and Others, S v Mafe, S v Mafuna and Another, S v Roestof, S v Mokoma, S v Nchoncho, S v Manare (A3448/2010, A3579/2010, A4348/2010, A4572/2010, A4638/2010, A5284/2010, A149/2011, A499/2011) [2011] ZAFSHC 153 (15 September 2011)
- Citation
- [2011] ZAFSHC 153
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Kruger, Mathebula
- Case number
- A3448/2010, A3579/2010, A4348/2010, A4572/2010, A4638/2010, A5284/2010, A149/2011, A499/2011
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Kruger, Mathebula
- Case number
- A3448/2010, A3579/2010, A4348/2010, A4572/2010, A4638/2010, A5284/2010, A149/2011, A499/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the prolonged illness of Mr Kajee, the acting magistrate, rendered him unfit to continue with the eight part-heard criminal trials. The uncertainty regarding his return and the need for ongoing medical treatment in another province meant that the accuseds' right to a speedy trial was compromised. In the interests of justice and fairness, and in accordance with established legal principles, the proceedings in all eight cases were set aside. The Prosecuting Authority was authorised to commence proceedings de novo before another judicial officer.
Court disposition
Proceedings in all eight cases set aside; trials to commence de novo before another magistrate.
Orders
- It is declared that Magistrate A K Kajee is unfit to continue with the trials in the eight listed cases.
- The proceedings in all the above cases are set aside.
- The Prosecuting Authority is authorised to commence proceedings de novo in all the above cases before another judicial officer.
02
Material facts
Parties
The State
ApplicantTheboho Thaele and 2 others
RespondentXexile Ruben Pane and 2 others
RespondentKeith Captain Mafe
RespondentSkhalo Mafuna and 1 other
RespondentJohannes Lodewiekus Roestof
RespondentAndrew Thamsanqa Mokoma
RespondentThabiso Johannes Nchoncho and 1 other
RespondentPhamela Benjamin Manare
RespondentAmounts and remedies
- Bail for Accused Number 3 in S V Thaele and 2 Others: ZAR 1,000
03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the prolonged illness of the presiding magistrate justifies setting aside the part-heard proceedings in eight criminal cases.
- 02
Whether the interests of justice require that the trials commence de novo before another magistrate.
- 03
Whether the accuseds' right to a speedy trial has been compromised.
Party arguments
- Applicant
- The Acting Senior Magistrate submitted that the accused in all eight cases are entitled to a speedy trial. Due to the prolonged illness of Mr Kajee, the acting magistrate, and the uncertainty regarding his return, it is in the interests of justice that the proceedings be set aside and the trials commence de novo before another magistrate. Reference was made to S v Mokoena 2005 (2) SACR 280 (O) to support this position.
- Respondent
- No formal opposition or argument from the accused was recorded. The accuseds' interests are represented by the principle of a speedy trial and the avoidance of undue delay, which is compromised by the magistrate's incapacity.
05
Court’s reasoning
Legal principles
- 01
S v Mokoena 2005 (2) SACR 280 (O)
An accused is entitled to a speedy trial, and undue delays caused by the incapacity of the presiding officer may justify setting aside proceedings.
- 02
General principles of criminal procedure
Where a magistrate is unable to continue with part-heard matters due to illness, the proceedings may be set aside and recommenced before another judicial officer to ensure fairness and justice.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the prolonged illness of Mr Kajee, the acting magistrate, rendered him unfit to continue with the eight part-heard criminal trials. The uncertainty regarding his return and the need for ongoing medical treatment in another province meant that the accuseds' right to a speedy trial was compromised. In the interests of justice and fairness, and in accordance with established legal principles, the proceedings in all eight cases were set aside. The Prosecuting Authority was authorised to commence proceedings de novo before another judicial officer.
Obiter and limits
- The court emphasised the importance of the right to a speedy trial and noted that delays caused by judicial incapacity must be addressed promptly to avoid prejudice to accused persons.
- The court observed that the interests of justice require flexibility in procedural matters when unforeseen circumstances, such as illness, prevent the continuation of a trial.
Court disposition
Proceedings in all eight cases set aside; trials to commence de novo before another magistrate.
- It is declared that Magistrate A K Kajee is unfit to continue with the trials in the eight listed cases.
- The proceedings in all the above cases are set aside.
- The Prosecuting Authority is authorised to commence proceedings de novo in all the above cases before another judicial officer.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 351/2011
In the review in the following cases:
THE STATE
and
(1) THEBOHO THAELE AND 2 OTHERS …............................A3448/2010
(2) XEXILE RUBEN PANE AND 2 OTHERS …........................A3579/2010
(3) KEITH CAPTAIN MAFE …..................................................A4348/2010
(4) SKHALO MAFUNA AND 1 OTHER …................................A4572/2010
(5) JOHANNES LODEWIEKUS ROESTOF …..........................A4638/2010
(6) ANDREW THAMSANQA MOKOMA …...............................A5284/2010
(7) THABISO JOHANNES
NCHONCHO ....................................A149/2011
(8) PHAMELA BENJAMIN MANARE ….....................................A499/2011
______________
CORAM: KRUGER, J et MATHEBULA, AJ
JUDGMENT BY: KRUGER, J
___________
DELIVERED ON: 15 SEPTEMBER 2011
[1] This is a special review dealing with the request that the proceedings in the above eight cases be set aside due to the prolonged illness of the magistrate and that they commence de novo before another presiding officer.
[2] These eight cases are all part-heard before Mr A K Kajee, an acting magistrate, sitting at Welkom.
[3] The details of the cases are as follows:
1. S v THEBOHO THAELE and 2 others - Case A3448/2010
Charges: 1 Malicious injury to property.
2 & 3 Housebreaking with intent to steal and theft.
Plea: 25 January 2011: All three not guilty all 3 counts.
Mechanically recorded. Postponed to 9 March 2011 (part heard).
9 March 2011:
Postponed to 15 April 2011: mechanically recorded.
15 April 2011:
Postponed to 28 May 2011, part heard, postponed for inspection in loco.
30 May 2011:
Mechanically recorded, postponed to 11 July 2011
11 July 2011:
Magistrate ill, case postponed to 24 August 2011.
24 August 2011:
Magistrate ill, case postponed to 16 September 2011 pending application to set proceedings aside due to illness of Mr Kajee. Accused numbers 1 – 3 in custody; bail for accused number 3 set at R1000,00.
2. S v XIXILE RUBEN PANE and 2 others - Case A3579/2010
Charge: Assault with intent to do grievous bodily harm.
Plea: 28 February 2011: All the accused not guilty.
Mechanically recorded, postponed to 30 March 2011.
30 March 2011:
Legal representative unavailable. Postponed to 15 June 2011.
15 June 2011:
Legal representative unavailable. Postponed to 28 July 2011.
28 July 2011:
Other Presiding Officer. Postponed to 17 November 2011.
3. S v KEITH CAPTAIN MAFE – Case A4348/2010
Charge: Reckless/Negligent driving
Plea: 2 March 2011: Not guilty.
Mechanically recorded, postponed to 4 May 2011.
4 May 2011:
Mr Kajee not at court.
1 August 2011:
Mr Kajee not at court, postponed to 19 September 2011.
4. S v SKHALO MAFUNA and 1 other - Case A4572/2010
Plea: 9 March 2011: both accused not guilty.
Trial commences. Mechanically recorded, postponed to 19 April 2011.
19 April 2011:
Postponed because doctor (witness) not available, postponed to 11 May 2011.
11 May 2011:
Other Presiding Officer, postponed to 15 June 2011.
Doctor not available, postponed to 1 August 2011.
Other Presiding Officer, Mr Kajee ill, postponed to 14 September 2011.
5. S v JOHANNES LODEWIEKUS ROESTOF – Case A4638/2010
Charge: Theft
Plea: 1 April 2011: not guilty.
Mechanically recorded, postponed to 27 June 2011.
27 June 2011:
Other Presiding Officer, postponed to 18 August 2011.
18 August 2011:
Other Presiding Officer, postponed to 18 September 2011 because Mr Kajee not available.
6. S v ANDREW THAMSANQA MOKOMA – Case A2584/2010
Plea: 12 April 2011: not guilty.
Trial commences before Mr Kajee, mechanically recorded, postponed to 27 May 2011.
27 May 2011:
Mechanically recorded, postponed to 14 June 2011.
14 June 2011:
Other Presiding Officer, postponed to 26 August 2011.
26 August 2011:
Other Presiding Officer, postponed to 26 September 2011.
7. S v THABISO JOHANNES NCHONCHO and 1 other – Case A149/2011
Charge: Robbery
Plea: 7 April 2011: Both accused not guilty.
Trial commences before Mr Kajee. Mechanically recorded, postponed to 17 May 2011.
17 May 2011:
Other Presiding Officer, postponed to 1 June 2011.
1 June 2011:
Other Presiding Officer, postponed to 21 June 2011.
21 June 2011:
Other Presiding Officer, postponed to 28 July 2011.
Other Presiding Officer, postponed to 25 August 2011.
25 August 2011:
Other Presiding Officer, postponed to 16 September 2011 for review.
8. S v PHAMELA BENJAMIN MANARE – Case A499/2011
Plea: 20 April 2011: Not guilty.
Trial commences before Mr Kajee, mechanically recorded, postponed to 1 June 2011.
Witness absent, postponed to 15 July 2011.
15 July 2011:
Other Presiding officer, Mr Kajee ill, postponed to 16 September 2011 for special review.
[4] Mr Kajee has been diagnosed with lymphoma. According to a letter received from the Specialist attending to Mr Kajee dated 5 August 2011, attached to the request for Special Review of the Acting Senior Magistrate at Welkom, Mr Kajee will receive treatment for at least the next 6 months. As his medical team is based in Cape Town, Mr Kajee will not be able to work in the Free State. It is not clear when Mr Kajee will be able to resume his duties.
[5] The Acting Senior Magistrate points out that an accused is entitled to a speedy trial, and with reference to S v MOKOENA 2005 (2) SACR 280 (O) he states that it will be in the interests of justice that the proceedings in these cases (all part-heard before Mr Kajee) be set aside, and that the trials commence de novo before another magistrate. Such order should be made.
[6] ORDER:
1. It is declared that Magistrate A K Kajee is unfit to continue with the following trials:
(a) S v Theboho Thaele and 2 others - Case A3448/2010;
(b) S v Xexile Ruben Pane and 2 others - Case A3579/2010;
(c) S v Keith Captain Mafe - Case A4348/2010;
(d) S v Skhalo Mafuna and 1 other - Case A4572/2010;
(e) S v Johannes Lodewiekus Roestof - Case A4638/2010;
(f) S v Andrew Thamsanqa Mokoma - Case A5284/2010;
(g) S v Thabiso Johannes Nchoncho - Case A149/2011;
(h) S v Phamela Benjamin Manare - Case A499/2011.
The proceedings in all the above cases are set aside.
3. The Prosecuting Authority is authorised to commence with proceedings de novo in all the above cases before another judicial officer.
____
A. KRUGER, J
I agree
_______
M.A. MATHEBULA, AJ
/EB/wm
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