- A Limpopo man is facing a criminal charge for allegedly accusing another person of witchcraft.
- The criminal trial was stopped when the magistrate recused himself due to prior involvement with the accused.
- The High Court directed that the matter must restart before a different magistrate.
The High Court in Thohoyandou has ordered that a criminal case involving allegations of witchcraft accusations must begin again before a different magistrate following concerns about the impartiality of the original presiding officer.
The accused, Tshivhula Tshifhiwa, is facing one count of accusing someone of witchcraft and one count of assault by threat in the Magistrates Court of Makhado sitting at Dzanani. Tshifhiwa pleaded not guilty to both charges and represented himself in court.
Although the judgment mainly dealt with the magistrate stepping aside, the case brings renewed attention to the criminal offence of accusing another person of practising witchcraft.
According to the record, the State had already called its first witness, believed to be the complainant, when the proceedings took an unexpected turn. During cross-examination, Tshifhiwa said he had previously contacted the magistrate for legal advice about the same dispute before any criminal charges were laid.
The State raised concerns that the magistrate already had prior knowledge of the matter and may have previously advised Tshifhiwa. The magistrate then recused himself and referred the matter for special review.
Magistrate found to be conflicted
Judge AML Phatudi found that the magistrate should not have presided over the matter once it became clear that he had prior involvement linked to the dispute.
Judge Phatudi wrote that the State's concern about the magistrate's prior knowledge and legal advice to the accused showed the magistrate had an interest in the matter, which left him conflicted. The judge also said the magistrate was conflicted and should not have presided over the case in the first place.
The judgment also said that once a judicial officer steps aside, the matter must go to another presiding officer and start again from the beginning.
The High Court did not decide if Tshifhiwa was guilty or innocent. The judge ruled the case must go back to the Magistrates' Court so that another magistrate can take over and the trial can start again from the beginning.
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