South Africa Case Law

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

Golding and Others v S (63/2019)

Golding and Others v S (63/2019) [2022] ZAKZDHC 20 (11 May 2022)

Court

Kwazulu-Natal High Court, Durban

Case number

63/2019

Judge

Chetty

The court dismissed a section 342A application alleging unreasonable trial delay, finding the delays did not cumulatively meet the legal threshold.

• Criminal Procedure Act Section 342a
• Right To Speedy Trial
• Unreasonable Delay
• Prosecutorial Discretion
• Criminal-procedure-act-section-342a
• Right-to-speedy-trial

S v Mokoena (16/2022; A 1115/2020)

S v Mokoena (16/2022; A 1115/2020) [2022] ZAFSHC 107 (4 May 2022)

Court

Free State High Court, Bloemfontein

Case number

A 1115/2020

Judges

Molitsoane, Loubser

The High Court set aside part-heard criminal proceedings where the presiding magistrate was unavailable, holding the accused’s speedy-trial rights were prejudiced.

• Right To Speedy Trial
• Inherent Review Jurisdiction
• Setting Aside Proceedings
• Unavailability Of Presiding Officer
• Right-to-speedy-trial
• Criminal-review

Lumka v Director of Public Prosecutions Gauteng Division, Pretoria (A198/2021)

Lumka v Director of Public Prosecutions Gauteng Division, Pretoria (A198/2021) [2022] ZAGPPHC 77 (7 February 2022)

Court

North Gauteng High Court, Pretoria

Case number

A198/2021

Judges

Noko, Baqwa, Van der Westhuizen

The court dismissed an appeal against refusal of a permanent stay of prosecution, holding the delay and alleged lost evidence did not justify stopping a serious murder case.

• Permanent Stay Of Prosecution
• Right To Speedy Trial
• Trial Related Prejudice
• Delay In Prosecution
• Fair Trial Rights
• Permanent-stay-of-prosecution

Rakimana v S (REV27/2021)

Rakimana v S (REV27/2021) [2021] ZALMPPHC 89 (28 April 2021)

Court

Limpopo High Court, Polokwane

Case number

REV27/2021

Judges

MG Phatudi, EM Makgoba

The court held that the mere retirement of a magistrate does not render him absolutely unavailable to conclude a trial commenced before retirement. Section 9(7)(a) of the Magistrates' Court Act specifically provides for continuity, allowing a retired magistrate to dispose of unterminated proceedings. The accused's right to a speedy trial under section 35(3)(d) of the Constitution would be infringed by requiring the trial to start de novo, especially where extensive evidence has already been led. Only in cases of absolute unavailability, such as death, recusal, or mental incapacity, should pro…

Source excerpt

• Continuity Of Presiding Officer
• Right To Speedy Trial
• Magistrates Court Act
• Criminal Procedure Act
• Unavailability Test

S v Ndibe (14/544/2010)

S v Ndibe (14/544/2010) [2012] ZAWCHC 245 (14 December 2012)

Court

Western Cape High Court, Cape Town

Case number

14/544/2010

Judges

T C Ndita, Zondi

The High Court held that the magistrate erred by striking the matter off the roll without conducting the enquiry required by section 342A of the Criminal Procedure Act. The record did not reflect any investigation into the reasons for the delay or consideration of the statutory factors. The accused had already pleaded, and evidence had been led, making the remedy of striking off the roll inappropriate under section 342A(3)(c). Instead, the court should have considered other remedies, such as a wasted costs order. The order of the magistrate was therefore set aside. The judgment emphasized tha…

Source excerpt

• Unreasonable Trial Delay
• Section 342a Criminal Procedure Act
• Right To Speedy Trial
• Striking Off The Roll
• Wasted Costs Order

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

S v Mokwena (A728/09)

S v Mokwena (A728/09) [2009] ZAGPPHC 311 (11 August 2009)

Court

North Gauteng High Court, Pretoria

Case number

A728/09

Judges

W J van der Merwe, E M Makgoba

On special review, the High Court set aside partially heard magistrates’ court proceedings after the presiding magistrate could not be located, avoiding further prejudice to the accused.

• Criminal Procedure Act Section 67
• Right To Speedy Trial
• Setting Aside Proceedings
• Criminal-procedure
• Special-review
• Speedy-trial

S v Bhuda (583/06)

S v Bhuda (583/06) [2006] ZAGPHC 96 (1 November 2006)

Court

High Courts - Gauteng

Case number

583/06

Judges

Jajbhay, Mathopo

The court held that the eight-month delay in referring the accused for psychiatric observation was a systemic delay resulting from resource limitations, specifically the lack of available beds at the designated hospital. While such delays are generally more excusable than those caused by individual negligence, they cannot be tolerated indefinitely. The magistrate failed to conduct a proper enquiry into the reasons for the delay as required by section 342A of the Criminal Procedure Act. Instead of striking the matter off the roll, the magistrate should have investigated the delay, considered g…

Source excerpt

• Right To Speedy Trial
• Unreasonable Delay
• Section 342a Enquiry
• Systemic Delay
• Bail Conditions

Saane v Hulme NO and Another (CCT33/00)

Saane v Hulme NO and Another (CCT33/00) [2000] ZACC 13; 2000 (4) SA 788 (7 September 2000)

Court

Constitutional Court

Case number

CCT33/00

Judges

Sachs, Chaskalson, Langa, Ackermann, Kriegler, Goldstone, Mokgoro, Ngcobo, O'Regan, Yacoob, Madlanga

The Constitutional Court refused direct leave to appeal, holding that the pending High Court appeal was the proper forum to raise the factual and legal issues.

• Right To Speedy Trial
• Direct Access To Constitutional Court
• Fair Trial Procedure
• Direct-appeal
• Speedy-trial
• Criminal-appeal