R v Sekhofa (Rev. Case No. 135/2004 CR. NO. 110/2004 Rev. Order No. 16/2004)

Media Neutral Citation: 
[2004] LSHC 101
Judgment Date: 
24 August, 2004



In the matter between :




Review Case No. 135/2004 CR. NO. 110/2004

Review Order No. 16/2004 In Butha Buthe District


(24th August 2004

The learned magistrate of Butha-Buthe (Ms Marakabei) has sent these proceedings for review. She felt that there had been an "oversight" on her part. She said in her memorandum she had been "unaware" that the matter had been a part-heard before a different magistrate before whom a plea of guilty was originally entered and later changed to one of not guilty before that magistrate (Mrs Nthunya).

When I informed Mr Kolisang who had appeared before the learned magistrate and the Director of Public Prosecutions to appear before me I had


thought that the matter was much complicated as the learned magistrate's memorandum sought to reflect. It was not.

The matter was finally argued before me by Mr Kolisang and Mr Seitlheko the latter on behalf of Director of Public Prosecutions. Mr. Seitlheko should have assisted me better in his submissions. I did not accept Mr Kolisang's suggestion that the Court could deviate for any reason from the substance or ground for review put forward by the learned magistrate. The reasons were obvious. One of them was that before the court aquo it did not appear that any such objections were raised. In addition any flexibility would result in disorderly jumble and lack of control. That is undesirable.

When I investigated through the public prosecutor who appeared in the matter before the learned magistrate I confirmed that Mr Kolisang's version of the events was the correct version on the central issues. The issue being that the Mrs Nthunya did not hear any evidence except the Public Prosecutor's outline. And corollary being that a plea of not guilty was entered and recorded instead. This was correctly so because the Accused did


not accept certain allegations as being correct. It proves convenient to briefly state the history of the matter.

The Accused appeared before the learned magistrate charged with contravening section 3(1) (2) of Sexual Offence Act 3/2003. Accused pleaded guilty in terms of section 240(b) of the Criminal Procedure and Evidence Act 9/1981. Accused as aforesaid initially pleaded guilty to the charge but after the Public Prosecutor had outlined the facts the Accused did not accept them. Consequently and correctly the proceedings were turned into a trial. This situation is more explicitly provided for in section 113 (correction of plea of guilty) of South African Criminal Law and Procedure Act No.5 of 1977.

It therefore admits of no doubt that where ".... The accused does not admit an allegation ...... the Court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution ....." See also S v Sibiya En Andere 1980(2) SA 458 (WPA) The Public Prosecutor added that Mrs Nthunya had been unavailable and outside the jurisdiction of the Court. ( See section 118 of South African Criminal Procedure Act) I thought this was a sufficient reason.


The learned magistrate was of the opinion that: "The matter was therefore a part-heard before a different magistrate for the plea was entered before her." The conclusion was unfortunately incorrect. Even if it was correct on the basis that a plea is recorded then the charge ought to be dismissed if not proceeded with that is not the real issue. The issue is whether another magistrate should competently have assumed jurisdiction.

The learned magistrate's conclusion that she thought or irregularity had occurred would have therefore been correct if Mrs Nthunya had not recorded a plea of not guilty. When a plea of not guilty has been recorded it is true that the pleadings are deemed to be pending before the Court but not necessarily before the particular magistrate. The following principle seems to be clearly applicable even assuming that the proceedings could rightly be held to have been part-heard. It is that

"When a judicial officer who has partly heard a criminal case is unable for any reason to carry it to a conclusion the case must be heard de novo before another judicial officer........."

See Rex v Maseru Morai 1910 EDL 359 - as quoted from Criminal Law and Procedure Through Cases, M. P. Mofokeng 1985. I am supported in my conclusion by above decision to conclude that the learned magistrate has


committed no irregularity on the basis that the proceedings before her could safely be said to have been a commencement de novo of the case. My conclusion is consistent with section 118 of South African Criminal Law and Procedure Act (supra) as well. The section provides that:

"If the judge or a regional magistrate or magistrate before whom an accused at summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced vet the trial may continue before another judge, regional magistrate or magistrate of the same court." (My underlining)

In S v BOORMAN 1981(2) (SA) 852 (KPA) the accused had after pleading guilty later rejected an allegation in the prosecutor's statement. The result was that a plea of not guilty was recorded and the matter was set for trial. The trial was postponed later heard and by a different magistrate the previous on having been transferred. On review it was held that there had been no irregularity. See also SV NDIWE 1988 (3) (SA) 972 (NC).

In my opinion, a most cogent reason for the conclusion that the learned magistrate (Ms Marakabei) has not acted irregularly is simply that the trial before her was proceeded with de novo and or alternatively the proceedings before the first magistrate (Mrs Nthunya) were not a pending


proceedings. Even if they were that does not nullify the latter proceedings which were commenced de novo.

My order on review is that, since there was no irregularity, the proceedings before the learned magistrate must continue to completion.

T Monapathi


Copy: O/C Central Prison

Director of Prisons

O/C Prisons Butha Buthe

O/C Police Butha Buthe

Director of Public Prosecutions

C.I.D. Maseru

All Magistrates

All Public Prosecutions