PRESIDING OFFICER UNAVAILABLE AFTER PLEA BUT BEFORE EVIDENCE – SECTION 118 CPA APPLICABLE

DAVID v REGIONAL COURT MAGISTRATE AND OTHERS 2018 (1) SACR 702 (ECB)

 

Trial — Presiding officer — Unavailability of to continue with trial — After plea of not guilty but no evidence adduced — Purpose of s 118 of CPA to cater for situations where judicial officer becomes unavailable after plea, but before evidence — Permissible that trial continue before judicial officer who is available.

 

The applicant, together with 10 other accused, appeared before the first respondent in a regional magistrates’ court on charges of fraud. They all pleaded not guilty and no evidence was adduced. After several postponements they appeared again some 18 months later and, because the first respondent was not available, the parties agreed that the matter could proceed before the second respondent, an acting regional court magistrate. The state then called a witness whose evidence was led before the matter was postponed again. When the matter resumed, the legal representative for the first three accused withdrew and the matter had to be postponed again. Shortly before the trial was due to resume, the applicant, now advised by a new legal representative, relying on the provisions of s 118 of the CPA, launched the present proceedings in which he sought an order that the decision of the first respondent ‘to recuse herself’, and the appointment of the second respondent to preside in the matter, be set aside.

After remarking that there was a singular lack of evidence produced in the applicant’s papers, including no evidence that the first respondent had recused herself,

Held, that, although it was true that once an accused pleaded not guilty he was entitled to a verdict before that judicial officer before whom he had pleaded, the purpose of s 118 of the CPA was to cater for situations where the judicial officer became unavailable after the plea but before evidence had been led. In such a case it was permissible that the trial could continue before a judicial officer who was available. No irregularity had been committed by continuing the matter before the second respondent. (See [19] – [23].) The application was dismissed.

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