S v Windvoel; S v Bouwer; S v Amoh; S v Nazo; S v Pagel; S v Gwadiso; S v Armstrong; S v Moodley; S v Damons & Calico; S v Labuschagne; S v Molelengoane; and Others (265/2013; 285/2013) [2013] ZAECGHC 86 (1 August 2013)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN

Date all delivered:

C.A & R.: 265/2013

Review No.: 130099

In the matter between:

THE STATE

and

ZANDISILE WINDVOEL .....................................................................................Accused

C.A & R.: 266/2013

Review No.: 130100

MORNE BOUWER ..............................................................................................Accused

C.A & R.: 267/2013

Review No.: 130101

EMMANUEL AMOH Accused

C.A & R.:268/2013

Review No.: 130102

SODWABO NAZO Accused

C.A & R.: 269/2013

Review No.: 130103

DONOVAN PAGEL Accused

C.A & R.: 270/2013

Review No.: 130104

SINETHEMBA GWADISO Accused

C.A & R.: 271/2013

Review No.: 130105

LEON MAURICES ARMSTRONG Accused

C.A & R.: 272/2013

Review No.: 130106

BUYISILE SONANZE Accused

C.A & R.: 273/2013

Review No.: 130107

SIVALIGHAM AROOMUGAN MOODLEY Accused

C.A & R.: 274/2013

Review No.: 130108

EDGAR DAMONS Accused 1

DAVID MARCO CALICO Accused 2

C.A & R.: 275/2013

Review No.: 130109

WYNAND LABUSHAGNE Accused

C.A & R.: 276/2013

Review No.: 130110

JACOB MOLELENGOANE Accused

C.A & R.: 277/2013

Review No.: 130111

MZIMASI VAPPIE Accused

C.A & R.: 278/2013

Review No.: 130112

DONOVAN JEAN LANDMAN Accused

C.A & R.: 279/2013

Review No.: 130113

BULALI NOTUNUNU Accused

C.A & R.: 280/2013

Review No.: 130114

And

ANTHONY WHITEBOOI Accused 1

SIMPIWE KAMPINI Accused 2

SIZWE HLOYI Accused 3

C.A & R.: 281/2013

Review No.: 130115

ANDRE CHRISTOFFEL THERON Accused

C.A & R.: 282/2013

Review No.:130116

ZIMELE WELFRED QWABE Accused

C.A & R.: 283/2013

Review No.: 130117

JOHANNES PETRUS JAKOBUS NEL Accused

C.A & R.: 284/2013

Review No.: 130118

PETER VENA Accused

C.A & R.: 285/2013

Review No.: 130119

WINSTON LEWIS Accused

REVIEW JUDGMENT

­­

EKSTEEN J:

[1] These matters come before us on special review. Each of these matters commenced before Magistrate P P Ntoyi. In each case the

accused has pleaded and the matters proceeded. Each of these cases is part heard. In May 2012 Magistrate Ntoyi fell ill and has been on sick leave ever since. He remains incapacitated and we are advised that medical opinion is to the effect that he may in future not be able to return to finalise these matters. In the circumstances these matters have been referred to us on review for “guidance as to the disposal of these matters”.

[2] Section 106(4) of the Criminal Procedure Act, 51 of 1977 (herein referred to as “the Act”) provides that an accused person who has pleaded to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused person on behalf of whom a plea of not guilty has been entered by the court, shall, save as is otherwise expressly provided in the Act or any other law, be entitled to demand that he be acquitted or convicted. Section118 of the Act provides that where the magistrate before whom an accused has pleaded not guilty is for any reason not available to continue with the trial and where no evidence has been adduced yet, the trial may be continued before any other magistrate of the same court. In the matters before us evidence has already been led and the trials have in each case commenced.

[3] It is now well-established that where a magistrate has become unavailable, in the absolute sense, to continue to preside in a part heard matter, such unterminated proceedings are a nullity and the matter may, in the discretion of the Director of Public Prosecutions, commence de novo before another presiding officer. (See S v Hanekom 2004 (1) SACR 490 (C), S v De Koker 1978 (1) SA 650 (O), S v Lapping 1998 (1) SACR 409 (W) and S v Bolelo 2000 (2) SACR 734 (NC).) This position pertains, however, only where the magistrate concerned has become permanently and absolutely unavailable, for example where he has died, retired or has been dismissed. In any other case, before a trial may start de novo before a new magistrate the proceedings would have to be set aside by the High Court. It seems to me that there is no statutory provision in the Act which provides for a situation such as the present.

[4] In S v Makoni and Others 1976 (1) SA 169 (R) Davies J stated, however, at 169H-170A:

“It seems to me that in principle where a magistrate is incapacitated through illness from continuing with a case justice requires that the proceedings should in fact be set aside and commenced de novo before another magistrate, if the incapacitation of the magistrate is likely to persist for a considerable period. There is no doubt that the delay of at least three months which will be involved in the present cases if the same magistrate is to continue hearing them is a lengthy delay and I consider in the circumstances that I can properly set the proceedings aside.”

[5] Later in S v Tlailane en ‘n ander 1982 (4) SA 107 (T) a Full Bench in the Transvaal Division of the Supreme Court, as it then was, recognised the possibility that, in theory, the

illness of a magistrate for a considerable period, could, depending on the facts, justify an order that the proceedings be commenced de novo before another magistrate. The Full Bench were however hesitant to endorse fully the approach in S v Makoni supra. Van Reenen J reasoned that a substantial period of absence due to illness should not necessarily give rise to a fresh trial, de novo, before another magistrate, but that each case should depend on its own facts. Each case should be left to the discretion of the Review Court concerned he opined, as it requires in each case a careful balancing of the advantages and disadvantages of a postponement as opposed to a retrial.

[6] A somewhat novel situation presented itself in S v Lapping supra where a magistrate had been suspended pending a disciplinary enquiry. The magistrate had accordingly not become unavailable in the absolute sense, but there was uncertainty as to whether the magistrate would at any time in the future be able to return in order to finalise the matter in issue and if so, when. On the facts of the matter the review court set aside the part heard proceedings and authorised the prosecuting authority to prosecute the accused de novo before another court, if he decided to do so. In coming to this finding Cloete J at 416H-I stated:

“In the present matter, the only alternative to an order directing a new trial would be to postpone the trial indefinitely in the hope that the trial magistrate will be able to complete it. It is impossible to say whether the trial magistrate will ever be able to do so. Speculation in this regard will involve inter alia prejudging the result of the pending criminal trial which has not yet commenced.”

[7] The facts in S v Lapping supra differ from those under consideration in this matter, however, they are very comparable in effect. In the present matter the presiding magistrate has been on leave due to ill health for an extended period of some 13 months. Medical opinion, we are advised, is that the prognosis for the magistrate’s recovery is poor. Sitting as a court of review we are not able to speculate as to the magistrate’s future health. The magistrate’s recovery may be slow or it may never occur at all.

[8] I think that the approach set out in Tlailane, supra, and applied in Lapping, supra is correct. In the present matter, as was the case in Lapping, supra, the only alternative to an order directing a new trial is an indefinite postponement of the trial in the hope that the magistrate may one day recover. That is not desirable.

[9] In my judgment having regard to the facts which I have set out herein the proceedings ought to be set aside to enable the Director

of Public Prosecutions, if so advised, to prosecute the accused in each case de novo before a new magistrate.

[10] In the result, I make the following order:

1. In each case the proceedings are set aside.

2. In each case the Director of Public Prosecutions is authorised, if so advised, to prosecute the accused de novo before another magistrate.

J W EKSTEEN

JUDGE OF THE HIGH COURT

PLASKET J:

I agree.

C PLASKET