South Africa Case Law

S v Yussif and Others (Special Review) (R69/2024; R70/2024; R71/2024)

S v Yussif and Others (Special Review) (R69/2024; R70/2024; R71/2024) [2025] ZAFSHC 77 (25 February 2025)

Court

Free State High Court, Bloemfontein

Case number

R69/2024; R70/2024; R71/2024

Judges

Nemavhidi, Chesiwe

When a magistrate becomes permanently unavailable during part-heard criminal proceedings at the pre-conviction stage, those proceedings are rendered a nullity ex lege. The High Court does not have to intervene or issue an order to set aside such proceedings, as the nullity arises automatically by operation of law. The prosecuting authority retains the discretion to reinstitute proceedings de novo before a different magistrate, without requiring permission or direction from the High Court. This approach is supported by established case law and statutory interpretation of the Criminal Procedure…

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• Magistrate Unavailability
• Nullity Of Proceedings
• De Novo Trial
• Criminal Procedure Act
• Special Review

S v Gema and Another (CA&R 4/2022)

S v Gema and Another (CA&R 4/2022) [2022] ZANCHC 5; 2023 (1) SACR 304 (NCK) (31 January 2022)

Court

Northern Cape High Court, Kimberley

Case number

CA&R 4/2022

Judges

Williams, Lever

The court found that although there was an inordinate delay in bringing the review, there was no evidence that witnesses would be untraceable or that the accused suffered substantial prejudice. The interests of justice require balancing the rights of the accused, the victims, and the broader community. Since the first accused was serving a sentence on another matter and the second accused was out on warning, and the record was available, the interests of justice are best served by setting aside the part-heard proceedings and allowing the trial to commence de novo before a different magistrate.

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• Fair Trial Rights
• Trial De Novo
• Magistrate Unavailability
• Delay In Proceedings

S v Makibi (R 84/2020)

S v Makibi (R 84/2020) [2021] ZAFSHC 77 (11 March 2021)

Court

Free State High Court, Bloemfontein

Case number

R 84/2020

Judges

Reinders, Chesiwe

The court found that the presiding magistrate's prolonged absence due to ill health and subsequent retirement rendered him unable to finalize the partly heard case. Further postponement would not serve the interests of justice. The proceedings were therefore set aside in their entirety, and the Director of Public Prosecutions was granted liberty to institute prosecution afresh if deemed appropriate.

Source excerpt

• Review Proceedings
• Magistrate Unavailability
• Setting Aside Proceedings

S v Mongwe (A122/2016)

S v Mongwe (A122/2016) [2016] ZAGPPHC 100 (1 March 2016)

Court

North Gauteng High Court, Pretoria

Case number

A122/2016

Judges

N.M. Mavundla, M.W. Msimeki

The court held that the part-heard proceedings before the deceased magistrate are a nullity. The authorities cited establish that when a magistrate becomes unavailable due to death, resignation, or incapacity, the proceedings are aborted and the trial must commence de novo before another magistrate. There is no need for a High Court order to set aside the earlier proceedings. In this case, the accused had pleaded not guilty and witnesses had been called and cross-examined, but the presiding officer passed away before the trial was concluded. Accordingly, the proceedings are a nullity and must…

Source excerpt

• Criminal Procedure Act Section 304
• Part Heard Proceedings
• Trial De Novo
• Magistrate Unavailability

S v Scheepers (3283/08)

S v Scheepers (3283/08) [2008] ZAGPHC 427 (25 November 2008)

Court

High Courts - Gauteng

Case number

3283/08

Judges

N.P. Willis, F.H.D. Van Oosten

The High Court found that the departure of the original magistrate, Mr Erasmus, from the service rendered him functus officio and unable to continue with the trial. Precedent establishes that in such circumstances, the proceedings may be set aside and a trial de novo ordered. The court emphasized that it is preferable and good practice for the lower court to apply to the High Court for such an order, rather than treating the matter as a mere administrative arrangement. The interests of justice require that the High Court regularize the proceedings, balancing the interests of the accused and t…

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• Criminal Procedure Act Section 304
• Magistrate Unavailability
• Trial De Novo
• Functus Officio

S v Thobela (258/07)

S v Thobela (258/07) [2007] ZAGPHC 204; 2008 (1) SACR 605 (W) (11 September 2007)

Court

High Courts - Gauteng

Case number

258/07

Judges

Moshidi, Goldstein

The High Court set aside a part-heard assault trial and acquitted the accused because long, unexplained delays violated his right to a fair, speedy trial.

• Unreasonable Delay
• Fair Trial Rights
• Magistrate Unavailability
• Acquittal Due To Delay
• Section 275 Criminal Procedure Act
• Unreasonable-delay

S v Hanekom (33999, 465/03, 15/478/03)

S v Hanekom (33999, 465/03, 15/478/03) [2003] ZAWCHC 67; 2004 (1) SACR 490 (C) (3 December 2003)

Court

Western Cape High Court, Cape Town

Case number

33999, 465/03, 15/478/03

Judge

N J Yekiso

The court held that once the acting magistrate’s contract was summarily terminated, the part-heard criminal proceedings became a nullity and could proceed de novo.

• Unterminated Proceedings
• Magistrate Unavailability
• Nullity Of Proceedings
• Section 304 Review
• Lis Pendens
• Demand For Verdict