South Africa Case Law

S v Moreki (R12/2023)

S v Moreki (R12/2023) [2023] ZAFSHC 184 (5 May 2023)

Court

Free State High Court, Bloemfontein

Case number

R12/2023

Judges

NG Gusha, PE Molitsoane

The High Court held that, although the Criminal Procedure Act does not expressly empower it to set aside proceedings in circumstances where the presiding officer becomes incapacitated after evidence has been led, the interests of justice require the exercise of inherent jurisdiction. Since the original magistrate is unable to continue and evidence has already been adduced, the proceedings must be set aside and the trial must commence de novo before another magistrate, should the Prosecuting Authority so determine.

Source excerpt

• Criminal Procedure Act
• Part Heard Trial
• Magistrate Incapacity
• Inherent Jurisdiction

S v Mbalisa (8/2021;8428/2019;107/2021)

S v Mbalisa (8/2021;8428/2019;107/2021) [2022] ZAWCHC 148 (27 July 2022)

Court

Western Cape High Court, Cape Town

Case number

8/2021;8428/2019;107/2021

Judges

Nziweni, Francis

The court found that the prolonged absence of the presiding magistrate due to ill health resulted in an inordinate delay, which infringed the accused's constitutional right to a speedy trial. The interests of justice required a definitive resolution, and postponement was no longer tenable. Jurisprudence supports that incapacity of a magistrate, such as illness, can justify the trial commencing de novo before another magistrate. The part-heard proceedings were set aside, and the matter was referred to the Director of Public Prosecutions to consider prosecution de novo.

Source excerpt

• Criminal Trial Delay
• Right To Speedy Trial
• Magistrate Incapacity
• De Novo Proceedings

S v Skhosana and Others (41/2193/2008)

S v Skhosana and Others (41/2193/2008) [2014] ZAGPJHC 223; 2015 (1) SACR 526 (GJ) (18 September 2014)

Court

South Gauteng High Court, Johannesburg

Case number

41/2193/2008

Judges

Victor, Satchwell

The High Court held that post-conviction matters may proceed to sentence before another magistrate, while pre-conviction part-heard trials become nullities and restart de novo.

• Criminal Trial Nullity
• Magistrate Incapacity
• Sentence By Another Magistrate
• Fair Trial Delay
• Special Review Procedure
• Criminal-trial-nullity

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)

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)

Court

Free State High Court, Bloemfontein

Case number

A3448/2010, A3579/2010, A4348/2010, A4572/2010, A4638/2010, A5284/2010, A149/2011, A499/2011

Judges

Kruger, Mathebula

The High Court set aside eight part-heard criminal trials because the acting magistrate’s prolonged illness made him unable to continue.

• Right To Speedy Trial
• Magistrate Incapacity
• Setting Aside Proceedings
• De Novo Trial
• Speedy-trial
• Magistrate-incapacity