S v Tlhoboro; S v Makhubela & Ditsele (32/2014; 33/2014) [2015] ZANWHC 86 (22 January 2015)

S v Tlhoboro; S v Makhubela & Ditsele (32/2014; 33/2014) [2015] ZANWHC 86 (22 January 2015)

The High Court held that where a magistrate resigns before conviction and sentence, the proceedings are a nullity and must commence de novo, as section 275 of the Criminal Procedure Act does not provide for continuation in such circumstances. The Court further found that, in cases of excessive postponements and procedural delays not attributable to the accused, justice may require acquittal. In the matter of Dimakatso Makhubela and Peter Ditsele, the proceedings were set aside and ordered to commence afresh. In the matter of Moses Tlhoboro, the Court found that the accused had suffered prejudice due to 36 postponements and was denied a fair trial, warranting acquittal in the interests of...

Citation
[2015] ZANWHC 86
Parties
Applicant: The State; Respondent: Moses Tlhoboro; Respondent: Dimakatso Makhubela; Respondent: Peter Ditsele
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
22 January 2015
Case Number
32/2014; 33/2014
Procedural Posture
Review Application / Special Review Before High Court
Outcome
Proceedings in S v Makhubela & Ditsele set aside and ordered to commence de novo; accused in S v Tlhoboro acquitted.
Judges
A M Kgoele
Legal Topics
Criminal Procedure Act, Special Review, Nullity of Proceedings, Inherent Jurisdiction, Acquittal in Interest of Justice
Criminal Law Civil Procedure Criminal Procedure Act Special Review Nullity of Proceedings Inherent Jurisdiction Acquittal in Interest of Justice

Case Brief

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Parties

The State

Applicant

Moses Tlhoboro

Respondent

Dimakatso Makhubela

Respondent

Peter Ditsele

Respondent

Procedural Posture

Review Application / Special Review Before High Court

Legal Issues

  1. 1 Whether proceedings before the magistrate, who resigned before conviction and sentence, are a nullity and should commence de novo.
  2. 2 Whether the High Court may exercise inherent jurisdiction to review and set aside proceedings not covered by section 304(4) or 304A of the Criminal Procedure Act.
  3. 3 Whether, in circumstances of excessive postponements and failure to afford the accused a fair trial, acquittal is warranted in the interests of justice.

Ratio Decidendi

The High Court held that where a magistrate resigns before conviction and sentence, the proceedings are a nullity and must commence de novo, as section 275 of the Criminal Procedure Act does not provide for continuation in such circumstances. The Court further found that, in cases of excessive postponements and procedural delays not attributable to the accused, justice may require acquittal. In the matter of Dimakatso Makhubela and Peter Ditsele, the proceedings were set aside and ordered to commence afresh. In the matter of Moses Tlhoboro, the Court found that the accused had suffered prejudice due to 36 postponements and was denied a fair trial, warranting acquittal in the interests of...

Court Disposition

Proceedings in S v Makhubela & Ditsele set aside and ordered to commence de novo; accused in S v Tlhoboro acquitted.

Orders

  • The proceedings in The State v Dimakatso Makhubela and Another (Case No. J455/2013) are reviewed and set aside and should commence de novo.
  • In The State v Moses Tlhoboro (Case No. J544/2011), the accused is acquitted.