- High court finds gross irregularity after magistrate convicts and then acquits the accused in the same Section 174 application.
- Court confirms that once a magistrate rules, functus officio applies and the decision cannot be reversed in chambers.
- Both orders set aside; matter remitted for a fresh hearing before a different presiding officer.
A Bizana magistrate who first convicted, then moments later acquitted and discharged an accused person during a Section 174 application, has been sharply criticised by the High Court in Mthatha. The court set aside both rulings and ordered the trial to start over before a different judicial officer.
Acting Judge AS Zono, with Judge B Majiki concurring, found that the magistrate committed multiple gross irregularities. These included deciding the accused’s guilt before the defence case, reversing his own ruling after an off-record meeting in chambers, and issuing two irreconcilable orders in a single criminal trial. The High Court ruled these proceedings were manifestly not in accordance with justice and violated foundational criminal procedure principles.
The case centred on a charge of assault with intent to do grievous bodily harm. After the State closed its case, the defence applied for a discharge under Section 174 of the Criminal Procedure Act, which allows acquittal only if there is no evidence on which a reasonable court could convict. Instead of restricting himself to that threshold, the magistrate went far beyond it.
Conviction before the defence heard
While considering the Section 174 application, the magistrate delivered what the High Court called a full conviction judgment, finding as a fact that the accused had assaulted the complainant and declaring him guilty without ever calling for the defence case. “Therefore, this court finds the accused person before the court guilty of the offence,” the magistrate stated after accepting the complainant’s evidence as sufficient for conviction.
For the reviewing court, this constituted a fundamental failure. Judge Zono held the magistrate had effectively decided the case even before the accused could come and give evidence to rebut, if so advised, any piece of evidence adduced against him.
The court stressed that a Section 174 ruling is limited. A verdict of not guilty may be returned only where there is no evidence implicating the accused. There is no authority to convict at that stage. By doing so, the magistrate violated the audi alteram partem rule.
“The first decision was granted without hearing the side of the accused,” Judge Zono wrote, finding this a gross irregularity and a failure of justice. Defence counsel immediately objected, “There is something grossly irregular with this judgment. Can we meet in chambers?”
Functus officio and the forbidden reversal
After a short adjournment and a meeting in chambers, the magistrate returned and announced he had made an error and then reversed himself. “This court earlier on has made an error by saying the accused is found guilty. Therefore, in terms of Section 174, the accused is found not guilty and discharged.”
The High Court held that this second ruling was legally impermissible. Once the magistrate had convicted, even wrongly, he became functus officio. “An official who has once discharged his official function by making a decision is unable to change his mind and revoke, withdraw or revisit the decision,” Judge Zono explained.
Citing Section 165(5) of the Constitution, the court reaffirmed that court orders bind all persons, irrespective of whether or not it is valid, until set aside. The first conviction therefore, remained binding until reviewed by a higher court.
By issuing a contradictory order, the magistrate exceeded his powers. “There is no authority for the proposition that two decisions may be granted by the same court and coexist,” Judge Zono wrote, describing the situation as very much unprecedented.
Section 174 misapplied
Even on its own terms, the acquittal could not stand. The magistrate justified the discharge because the accused was out on warning, a factor the High Court called entirely irrelevant. “Release of an accused on warning is not a basis for the discharge of an accused under Section 174.”
Section 174 applies only where there is no evidence. “The words ‘no evidence’ mean no evidence upon which a reasonable person might convict the accused,” Judge Zono wrote.
Instead, the magistrate ignored the evidence he had just relied on and failed to assess whether it met the statutory test. “Present the evidence; no power to discharge the accused exists,” the court said.
The absence of meaningful reasons further troubled the High Court. “A decision taken without reasons is malicious,” Judge Zono observed, finding the acquittal arbitrary, capricious and whimsical.
The silence of chambers
The judges expressed particular concern about the unrecorded meeting in chambers. Its participants were not disclosed, and no explanation was given for the magistrate’s change of view. “What then led to the second decision was not placed on record,” Judge Zono noted.
In a court of record, such opacity undermines transparency and fairness. “This is not a trivial matter,” the court warned, as it goes to the heart of justice being done and being seen to be done.
Justice must be seen to be done
Quoting S v Rall, the court reiterated that justice requires public demonstration of impartiality and fairness. Here, the opposite occurred. “A criminal trial that proceeds and comes to a conclusion that the accused is guilty and immediately thereafter makes a different decision finding the accused not guilty without any meaningful reasons is manifestly not in accordance with justice,” Judge Zono wrote.
Such an approach, the court said, erodes public confidence in justice.
Trial orderedde novo
The High Court set aside both the conviction and the acquittal, ordering the matter remitted to the Bizana Magistrate’s Court to start afresh before another magistrate.
“The magistrate had no jurisdiction, power or competence to grant the second order,” Judge Zono concluded, adding that the only lawful course, once the irregularity was realised, was to refer the matter for special review.
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