S v MUGODHI 2017 (1) ZLR 152 (H)

Flynote

Court — judicial officer — death or incapacity of — magistrate dying after preparing verdict but before delivering it — proceedings a nullity — not permissible for another magistrate to deliver verdict then pass sentence — whether necessary for High Court to set aside proceedings

Headnote

A regional magistrate died after preparing her verdict in a criminal trial, but before handing it down. Another magistrate handed down the verdict and proceeded to pass sentence, relying on s 334(7) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Held, that s 334(7) was applicable to situations where only sentence was outstanding. Where a verdict had not been passed, no other magistrate could take over proceedings which were commenced before another magistrate who was no longer available. Where a plea has been entered and evidence has been led, and the judicial officer before whom the accused pleaded becomes unavailable, he becomes functus officio and the proceedings are a nullity and must be commenced de novo.

Held, further, that as the proceedings became a nullity it was not necessary for the High Court to set aside the proceedings.

Editor's note: see also S v Kennedy supra in this volume.