Mokoena v The State

The appellant, Moeketsi Mokoena, was charged with theft of R1 million from SBV Cash Services, his employer. The trial commenced in September 2013 in the regional court before Magistrate A Petersen. After the State closed its case, the appellant testified in his defence. The matter was postponed to June 2014 to secure the attendance of a witness regarding certain video footage. The State had made this witness available to the defence. By June 2014, no steps had been taken to secure the witness by subpoena. The magistrate warned this would be a final postponement and the matter was adjourned to August 2014. Despite a subpoena being issued, the witness did not attend in August 2014. The appellant requested another postponement but declined the magistrate's offer to issue a warrant of arrest for the witness. The State objected to further postponement. The magistrate refused the postponement and invoked s 342A(3)(d) of the Criminal Procedure Act 51 of 1977 mero motu (on his own initiative), ruling that proceedings would continue as if the defence case had been closed. The appellant was convicted and sentenced to 15 years' imprisonment. The high court (Weiner and Mailula JJ) upheld the appeal finding the magistrate had incorrectly applied s 342A but remitted the matter to the same magistrate for continuation of the trial.

• Whether a magistrate can invoke s 342A(3)(d) read with s 342A(4)(a) of the Criminal Procedure Act 51 of 1977 mero motu, in the absence of prior notice by the State of its intention to apply for an order that proceedings continue as if the defence case had been closed
• Whether the irregularity in applying s 342A resulted in a failure of justice
• Whether the high court was correct to remit the matter to the same magistrate who had already convicted and sentenced the appellant
• Whether s 324(c) of the Criminal Procedure Act should be applied to allow fresh proceedings before a different magistrate

1. The appeal was upheld. 2. The order of the high court was set aside and replaced with an order that: (a) The appeal succeeds and the conviction and sentence of the appellant are set aside; (b) It is ordered in terms of s 324(c) of the Criminal Procedure Act 51 of 1977 that proceedings in respect of the same offence may again be instituted on the same charge, suitably amended if necessary, as if the appellant had not been previously arraigned, tried and convicted, provided that the magistrate before whom the original trial took place shall not take part in the proceedings.

A magistrate may not invoke s 342A(3)(d) read with s 342A(4)(a) of the Criminal Procedure Act 51 of 1977 mero motu in the absence of prior notice by the State or defence of its intention to apply for an order that proceedings continue as if the case for the prosecution or defence has been closed. The requirements of s 342A(4)(a) are peremptory. Only the State or a party (not a magistrate) may give the requisite notice. There is a significant difference between a magistrate warning that an adjournment is final and formal notice under s 342A(4)(a): in the former the party retains the election whether to close their case, in the latter that election is removed and placed in the magistrate's hands. Where a technical irregularity precludes valid consideration of the merits and excludes material evidence, a failure of justice results under s 309(3). Where conviction and sentence are set aside due to technical irregularity resulting in failure of justice, s 324(c) applies to permit fresh proceedings before a different magistrate. A presiding officer who has already concluded that an accused is guilty and furnished reasons for conviction cannot hear further evidence in the same matter.

The court noted that the provisions of s 342A must be strictly interpreted in view of the serious consequences of such an order and its effect upon the right to a fair trial as envisaged in s 35(3) of the Constitution. The court emphasized that because the application of s 342A(4)(a) may have far-reaching consequences, it is essential that proper notice be given to enable the other party to prepare in advance. The court also observed that according to Director of Public Prosecutions, Transvaal v Mtshweni [2006] ZASCA 165; [2007] 1 All SA 531 (SCA), s 324(c) does not conflict with s 35(3) of the Constitution as it does not result in double jeopardy because of the vitiating nature of the irregularity. The court noted that the high court's remittal order was also problematic because it did not set aside the conviction and sentence, and in the absence of such an order, the magistrate would have been unable to continue with the trial.

This case establishes important principles regarding the strict application of s 342A of the Criminal Procedure Act 51 of 1977, which deals with unreasonable delays in criminal trials. It clarifies that the procedural requirements, particularly the notice requirement in s 342A(4)(a), are peremptory and must be strictly complied with given the serious consequences for fair trial rights. The judgment emphasizes that a magistrate cannot invoke s 342A(3)(d) mero motu; only the State or defence can give notice and apply for such an order. The case also confirms the application of s 324(c) as the appropriate remedy where a technical irregularity results in failure of justice, and highlights that a presiding officer who has already convicted an accused and made credibility findings cannot continue hearing the same matter, as this would compromise the fairness of proceedings. The decision reinforces constitutional fair trial protections under s 35(3) of the Constitution while allowing for fresh proceedings where procedural irregularities vitiate earlier proceedings.