S v HEWU AND OTHERS 2017 (2) SACR 67 (ECG)


Trial — Striking of case from roll — Magistrate taking view that accused unlawfully rearrested immediately after matter had previously been struck off roll — Magistrate ought to have undertaken enquiry in terms of s 342A of Criminal Procedure Act 51 of 1977 — Striking-off incorrect in circumstances.


This matter came before the court on special review at the request of the Senior Magistrate, Port Elizabeth, who was faced with a dilemma in that the case had been struck from the roll several times since the regional magistrate assigned to hear the matter was of the view that the re-arrest of the four accused was improper in the specific circumstances of the case. The difficulty arose when the case was first struck from the roll when it had twice been postponed for trial and the foreign-language interpreter required for the hearing was not at court. The accused had at that stage already been in custody for 10 months. Immediately upon their release, the accused were rearrested by the investigating officer on a warrant issued by a magistrate. When the case was then brought before the regional magistrate, who was not the magistrate who had originally struck the matter from the roll, she took the view that the incarceration of the accused was unjustified as the method used by the state to secure their attendance was procedurally unfair. She struck the matter from the roll for the second time. When the prosecuting authorities obtained an assurance that the interpreter would be available the following week, the matter was again set down on the roll and the accused were rearrested on the morning of the trial and brought before court. The same magistrate was again in court. She expressed her misgivings about the warrant being obtained without an appropriate affidavit and stressed that she had already made a ruling on the matter, and once again struck the matter from the roll. Faced with this impasse the senior magistrate approached the High Court for a ruling.

Held, that the misgivings the regional magistrate had regarding the rights of the accused were not misplaced but she ought to have investigated the reasons for the postponement and the prospects of finalising the matter in terms of s 342A of the Criminal Procedure Act 51 of 1977, with due regard to the purpose of s 60(11) of the Act. Had she done so she would have appreciated that the postponement required was for a very short period. She had also been given an assurance that the foreign-language interpreter would be present on the following occasion and the matter would be able to proceed to trial. She was not in the circumstances entitled to strike the matter from the roll and should rather have postponed the matter subject to any conditions she deemed appropriate (see [24]).

Held, further, that the proceedings were not in accordance with justice and the accused could be rearrested for purpose of trial. The magistrate presiding in the matter was directed to hold an enquiry in terms of s 342A of the Act in the event that a further postponement of the matter was sought by the state


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