South Africa Case Law

Dichaba v Regional Court Magistrate, Vryburg and Another (M312/2019)

Dichaba v Regional Court Magistrate, Vryburg and Another (M312/2019) [2022] ZANWHC 35 (14 July 2022)

Court

North West High Court, Mafikeng

Case number

M312/2019

Judges

Petersen, Gura

The court held that the Regional Magistrate's recusal was justified due to the prosecutor's disclosure of the applicant's previous conviction, which created a perception of bias and risked compromising the fairness of the trial. While the applicant was aggrieved by the recusal, the court found no irregularity amounting to a failure of justice, as the magistrate acted to avoid a mistrial. However, the subsequent order by the magistrate that the trial commence de novo before another magistrate was incompetent, as only the High Court has the authority to make such an order. The proceedings under…

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• Recusal Of Judicial Officer
• Trial De Novo
• Irregularity In Proceedings
• Fair Trial Rights
• Magistrates Court Jurisdiction

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.

Source excerpt

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

S v Mothobi / Lefoane (R64/2016)

S v Mothobi / Lefoane (R64/2016) [2016] ZAFSHC 73 (5 May 2016)

Court

Free State High Court, Bloemfontein

Case number

R64/2016

Judges

Moloi, Molemela

The court held that convicting Joyce Lefoane, who was not the person charged, was not in accordance with justice. The proceedings and conviction were based on misrepresentation of identity. The conviction must be set aside because only the person charged may be convicted of the offence. The court declined to remit the matter for trial de novo, as this would again be unjust when the wrong person was charged. The decision regarding whom to charge and on what charge remains the prerogative of the prosecution.

Source excerpt

• Misrepresentation Of Identity
• Conviction Of Wrong Person
• Criminal Procedure Act Section 304
• Trial De Novo
• Justice In Criminal 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 Buda (A502/2013)

S v Buda (A502/2013) [2013] ZAGPPHC 190 (9 July 2013)

Court

North Gauteng High Court, Pretoria

Case number

A502/2013

Judges

E.M Makgoba, S.P Mothle

High Court review set aside a criminal conviction proceedings record that was lost after conviction, ordering any further trial to start de novo.

• Review Proceedings
• Setting Aside Conviction
• Trial De Novo
• Criminal-review
• Lost-trial-record
• Trial-de-novo

S v Lekwadu (A 478)

S v Lekwadu (A 478) [2011] ZAGPJHC 214 (19 May 2011)

Court

South Gauteng High Court, Johannesburg

Case number

A 478

Judges

PA Meyer, WL Wepener

The High Court determined that the termination of the presiding magistrate's contract rendered him totally incapable of continuing with the trial. The court found that speculation regarding the magistrate's future availability would be inappropriate and could prejudice the accused, who was on bail. The court reasoned that commencing a trial de novo before another magistrate would be more expedient and just than postponing the matter indefinitely, especially given the limited evidence already presented and the likelihood of a swift retrial. The proceedings were therefore set aside to enable th…

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• Possession Of Stolen Property
• Magistrates Court Procedure
• Trial De Novo
• Judicial Incapacity

S v Maluka

S v Maluka [2009] ZAFSHC 116 (12 November 2009)

Court

Free State High Court, Bloemfontein

Case number

616/2009

Judge

H.M. Musi

The High Court set aside incomplete magistrates’ court proceedings and remitted the matter for a trial de novo because the presiding magistrate was unavailable.

• Criminal Procedure
• Trial De Novo
• Magistrates Courts
• Inherent Jurisdiction
• Criminal-procedure
• Trial-de-novo

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 Motlhabane and Others (86/08)

S v Motlhabane and Others (86/08) [2008] ZANWHC 39 (30 October 2008)

Court

North West High Court, Mafikeng

Case number

86/08

Judges

A M Kgoele, R D Hendricks

The court held that the presiding officer's bona fide recusal did not constitute an irregularity amounting to a failure of justice. The discretion exercised by the presiding officer was respected, and the court aligned itself with the principle that a judge's bona fide recusal should not be easily overturned, even if the grounds are not shared by the reviewing court. The court rejected the proposal to allow the new presiding officer to determine the case based on the record of evidence already adduced, holding that the matter must start de novo before another presiding officer. The presiding…

Source excerpt

• Recusal Of Judicial Officer
• Functus Officio
• Trial De Novo

S v Mokone (471/08)

S v Mokone (471/08) [2008] ZAFSHC 61 (14 August 2008)

Court

Free State High Court, Bloemfontein

Case number

471/08

Judges

M.H. Rampai, S.P.B. Hancke

Special review of an incomplete criminal trial after the presiding magistrate retired. The High Court set aside the partial proceedings and ordered a trial de novo.

• Incomplete Proceedings
• Magistrate Retirement
• Trial De Novo
• Incomplete-proceedings
• Magistrate-retirement
• Trial-de-novo