S v Tomose (24/493/2004) [2008] ZAWCHC 49 (19 August 2008)

S v Tomose (24/493/2004) [2008] ZAWCHC 49 (19 August 2008)

The court held that once an accused has pleaded before a properly constituted court, only that court is competent to try the matter. The second proceedings before Magistrate Magele were a nullity because the accused had already pleaded and the trial had commenced before Magistrate Ndlakuhlolo. Subjecting the accused to two trials for the same offence is unconstitutional and a grave irregularity. The Supreme Court has the power to intervene in such circumstances to prevent injustice and uphold the rule of law. Accordingly, the second proceedings were set aside and the earlier trial was ordered to continue.

Citation
[2008] ZAWCHC 49
Parties
Applicant: State; Respondent: Tomose
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 August 2008
Case Number
24/493/2004
Procedural Posture
Review Application / Special Review After Irregular Second Trial Proceedings
Outcome
Second proceedings before Magistrate Magele are set aside as a nullity; earlier trial before Magistrate Ndlakuhlolo to proceed.
Legal Topics
Double Jeopardy, Jurisdiction of Trial Court, Irregular Proceedings
Criminal Law Civil Procedure Double Jeopardy Jurisdiction of Trial Court Irregular Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

State

Applicant

Tomose

Respondent

Procedural Posture

Review Application / Special Review After Irregular Second Trial Proceedings

Legal Issues

  1. 1 Whether a second court may lawfully conduct proceedings when another court is already seized with the trial after the accused has pleaded.
  2. 2 Whether the second proceedings amount to a nullity and should be set aside.
  3. 3 Whether subjecting the accused to two trials for the same offence is unconstitutional.

Ratio Decidendi

The court held that once an accused has pleaded before a properly constituted court, only that court is competent to try the matter. The second proceedings before Magistrate Magele were a nullity because the accused had already pleaded and the trial had commenced before Magistrate Ndlakuhlolo. Subjecting the accused to two trials for the same offence is unconstitutional and a grave irregularity. The Supreme Court has the power to intervene in such circumstances to prevent injustice and uphold the rule of law. Accordingly, the second proceedings were set aside and the earlier trial was ordered to continue.

Court Disposition

Second proceedings before Magistrate Magele are set aside as a nullity; earlier trial before Magistrate Ndlakuhlolo to proceed.

Orders

  • The second proceedings before Magistrate Magele (Cape Town) are hereby set aside.
  • It is ordered that the earlier trial be proceeded with.