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DEPARTMENT: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
REPUBLIC OF SOUTH AFRICA
NATIONAL ASSEMBLY
PARLIAMENTARY QUESTION FOR WRITTEN REPLY
QUESTION NO.: 2235
DATE OF PUBLICATION: 29 OCTOBER 2009
Ms M Smuts (DA) to ask the Minister of Justice and Constitutional
Development:
(1) Whether a certain magistrate (name furnished) refused further
postponement and
dismissed a certain case (details furnished) because the
prosecutor was not ready to
proceed; if so, why was the prosecutor not ready to proceed;
(2) whether a senior public prosecutor was called to explain the
circumstances in this
regard; if so, what were the details of the explanation;
(3) whether the Director of Public Prosecutions in Grahamstown
refused to release the prosecutor who originally prosecuted the
case; if so, why?
Details : Accused : Siyanda Robile, Monwabisi Vuku, Odwa Sepepa;
Magistrate: Ronel Erasmus; date of arrest and charge: January
2008.
NW2944E
Reply:
(1) I have been provided with information from the National
Prosecution Authority that indicates that the magistrate in
question did dismiss the case referred to. The background is
that the prosecutor who had started the trial was appointed as a
State Advocate in the Office of the Director of Public
Prosecutions (DPP), Grahamstown, leaving the matter partly-heard
in the lower court. The prosecutor left comprehensive notes in
the docket for the new prosecutor destined to take over the
prosecution. On the date of the incident under query, the
Regional Magistrate dismissed the case in terms of section 174
of the Criminal Procedure Act after declaring the Stateâs case
closed, apparently in terms of section 342A of the said Act. It
is, however, not, because the State was not ready to proceed.
The prosecutor was ready to proceed and made this clear to the
magistrate. On an earlier date the case had been postponed to
allow for the transcription of the record in order to allow the
new prosecutor to familiarize herself with the record. Although
the record had not yet been transcribed on the date, the
prosecutor nevertheless advised the court that she was ready to
proceed and to call the next witness. The magistrate refused
that the State lead any further evidence as the defence objected
to the trial proceeding, saying the matter was postponed for the
record to be typed and that, in any event, they had other cases
in other courts. The Office of the DPP in question was
consulted, and provided the prosecutor with the directive that
the magistrate was to be advised in the case in question that
the State would not close its case but that the prosecution was
ready to put the witness in the stand and proceed with the
trial. Notwithstanding the fact that the witness was ready and
available, the magistrate proceeded to dismiss the case.
(2) Yes, the Senior Public Prosecutor was called by the court to
explain why the record was not typed. She explained that the
prosecution had requested the office manager who heads the local
court administration in question to deal with the transcription
of the court record.
(3) The prosecutor had left extensive notes in the docket for any
subsequent prosecutor to familiarize herself/himself with the
trial. It was not anticipated that she would be required to
return for the prosecution. When the Director of Public
Prosecutions was advised that the prosecutor in question had a
partly-heard case, she had already been allocated to other
duties and had prepared for prosecuting appeals in the High
Court and could not, at the time, be released to do the partly-
heard case in the regional court. The dismissal of the case
however had nothing to do with the availability or otherwise of
the prosecutor in question. The prosecutor who took over the
case had in fact repeatedly asked the magistrate to allow the
available witness to testify. The magistrate however refused
this. The transcription of the record is awaited for the
National Prosecution Authority to consider what course of action
to take in the light of the decision by the magistrate.