CA NO:  52/07

IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:
THE STATE

and

PIET DIGASHU

REVIEW JUDGMENT

SWART AJ:

[1]	This is a special review at the request of the Magistrate for the district of Ga-Rankuwa on the following grounds:-

“1.	This being a special review in terms of the decision of Ismail and Others v Additional Magistrate, Wynberg and another 1963 (1) SA 1(A).   It is submitted that the reviewing judge may exercise its powers in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.

2.	The basis of the Special Review is as follows.  The record is a typed record of the proceedings and reflects clearly that the court misdirected itself by creating the impression that the accused will be tried with a negative bias emanating from the bench.

3.	This court regrets the situation it created but cannot in good conscience proceed with the matter.

4.	It is requested that the evidence be set aside and the matter begin de novo before another presiding officer.

5.	The matter has taken much time to reach the High Court due to this court being medically indisposed for an extended period and the matter being set down on the wrong roll accidentally which two factors caused much time delay.

6.	The written remand record has not been typed due to the time delays it would entail.  I trust that the typed original record and this page containing the reasons for the application will suffice.”

[2]	The Magistrate recused himself shortly after the commencement of the trial as a result of a remark emanating from the Magistrate which can be described as an emotional outburst.

[3]	As soon as the Magistrate recused himself he became function officio.  It follows, therefore, that if there had been a demand for it, he could not, after such recusal, enter a verdict.

[4]	The proceedings have become a nullity in the circumstances.  In the event of the death or incapacitation of a Magistrate, of a permanent nature, the matter must be heard de novo before another Magistrate.

[5]	In the present case the exact same situation arises.

[6]	The proceedings before the Magistrate is therefore set aside and it is ordered that the proceedings be heard de novo before another Magistrate.

A J  SWART
ACTING JUDGE OF THE HIGH COURT

I agree.

A A  LANDMAN
JUDGE OF THE HIGH COURT

10 AUGUST 2007