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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 83/05

In the matter between:

THE STATE

AND

M MOSWEU

MMABATHO

REVIEW JUDGMENT

TLHAPI AJ:

[1] This matter has been referred by way of Special Review by the Regional Court Magistrate sitting at Rustenburg. The accused appeared before Magistrate D I Matlapeng and was charged with the rape of an eight year old minor.

[2] According to the Magistrate the following occurred during the trial:

2.1 The accused was not given the opportunity to complete cross-examination of the complainant after his attorney had withdrawn from the case.

2.2 The Magistrate failed to draw the accused’s attention to the provisions of Act 105 of 1977.

According to him a gross injustice might occur to both the complainant and or the accused if he were to proceed with the trial to conclusion and that an order be granted for a trial de novo before another Magistrate.

[3] I have studied the record and note the following:

3.1 At commencement of the proceedings on the 28 July 2004 the accused was represented by one Mr W Mataboge. The accused pleaded not guilty to the charge and elected not to disclose the basis of his defence.

3.2 The complainant was assisted by an intermediary and after testifying Mr Mataboge proceeded to cross-examine her. This appears from page 8-18 of the record. At some point the interpreter indicated that he was not well and although a substitute was found the matter did not proceed. The case was postponed to 5 August 2004.

3.3 Mr Mataboge failed to make an appearance on 5 August 2004, 10 October 2004 and 13 October 2004. On the last date the accused was warned by the Court that the trial would proceed on 5 November 2004 and the accused was warned to bring his representative along. Mr Mataboge appeared but was unable to proceed due to personal problems. His unavailability for this day was argued at length and finally he withdrew from the proceedings. The accused was also engaged by the court regarding legal representation and was informed that at a previous hearing he was told to find alternative representation should he have problems with Mr Mataboge and that the trial was going to proceed ( this previous statement does not appear from the record).

3.4 The trial proceeded without completing cross examination and re-examination of the complainant. Before calling the second State witness the Magistrate informed the accused of the minimum sentence Act 105 of 1997 and of its implications should he be convicted of the charges. The second state witness was called and the rights of cross examination were explained to the accused.

3.5 The State closed its case and the accused elected to testify. He also called two witnesses and wished to call a third one. It was during this time that the Magistrate made the observations referred for special review and informed the accused to seek legal representation so as to enable him to make representations regarding the issues referred to this Court. He was given time limitations in which to make such representations and as at the time of the record being sent to this Court and of my completing this judgement nothing has been received from the accused.

[4] With regard to the explanation to the accused regarding the implications of Section 51 of the Criminal Law Amendment Act 105 of 1997, the accused was initially represented by Mr Mataboge, and it can be assumed that the implications of the said Act were properly explained to him when the trial commenced and these were also repeated after Mr Mataboge left. Any shortcoming under these circumstances is not sufficient to declare the proceedings irregular.

[5] The fact that the accused did not complete cross examination and that the prosecution was not given opportunity to re-examine the complainant constitutes in my view a gross irregularity. The situation can be remedied by recalling the witness, if the Magistrate becomes aware of such fact before the trial is completed. In this way the Magistrate would be acting in the interests of justice by giving accused the opportunity to complete his cross examination and also by allowing re-examination of the witness.

[6] When Mr Mataboge recused himself as attorney of record, the Magistrate in my view should have encouraged the accused to seek alternative legal representation, before proceeding, even though a further delay was going to be inconvenient to the Court. The reason being that the cross examination of the complainant was curtailed during a crucial time during the trial. Further, by the very nature of the charge legal representation was necessary.

[7] In S v Shamatla 2004 (2) SACR 570 (ECD) after the defence had closed its case and after the court had taken a short adjournment, the Magistrate proceeded to deliver judgement without giving the prosecutor and the defence attorney the opportunity to address the court on the merits of the matter. It was only after conviction when the defence attorney made the Magistrate aware of the irregularity. The matter was sent on special review and the conviction was set aside because the accuseds’ right to a fair trial were flouted.

[8] The courts are often reluctant to interfere with proceedings before they are completed. Magistrates are therefore expected to exercise the utmost diligence during trials and guard against such irregularities occurring. They cannot rely on the High Court to come to their rescue before trials are completed, by having proceedings set aside.

[9] In this instance however, and in the interests of justice, I deem it necessary to set the proceedings aside, because even if left to be completed I do not believe that another judge, on being presented with the same facts in proceedings in terms of section 52 of Act 105 of 1997 would come to a different conclusion.

[10] The proceedings are therefore set aside and the matter is to be re-tried de novo before a differently constituted Court.

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V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

I agree

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SAMKELO GURA

JUDGE OF THE HIGH COURT

DATED : 8 SEPTEMBER 2005

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