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CaseLaw, Attorney
Category: South Africa Law
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Experience:  BCom; LLB; Masters in Law
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I have a South African criminal law question. Two questions

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Hi, I have a South African criminal law question. Two questions actually.
Background: Family member arrested on fraud charge. Additional charges have been added. It was established during questioning witnesses that: the original search warrant (relating to fraud charge) was not valid (the additional charges were as a direct result of the search); and that the investigating officer committed fraud while gathering the finacial evidence (for the original fraud charge). Magistrate said that the evidence in question will still be considered anyway. This decision has been appealed to the high court (a "setdown" date has been arranged).
1 - Quick question. The original charge sheet has gone missing. Is there any consequence to this (e.g. the case gets thrown out)?
2 - Long question. Previously the magistrate has explained to the prosecutor that the court case cannot go on until the high court has made a decision (high court hasn't heard the case yet). Now the magistrate is saying that the case must go on without waiting for the high court decision. My understanding is that this is not allowed. Is there any recourse in order to prevent the case from being concluded before the high court can reach a decision about the evidence that is central to the magistrate concluding the case?

Hi there and thank you for your question,

I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

You will need to formally launch an application to stay (stop / cease) the magistrates court proceedings until such time as the high court has handed down judgment in its appeal. This is very important because the high court decision has a direct impact on the evidence that will be presented in the magistrates court proceedings. There is no way that the magistrate can refuse this application, and if he does, then you would have grounds to appeal that decision to the high court as well.

Also, if the original charge sheet is missing then the prosecutor should be forced to explain why, and produce a certified copy of the original!

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,


Hi there again,

I see that you've read my answer and I hope that you understood the answer and that it was useful? If you have a further question please ask it, or if you need clarity on the answer please let me know.

If you're happy that I've answered your question, please leave positive feedback for me.



Customer: replied 22 days ago.
Could you also assist with the format and wording for a motion to combine? There are two matters before the high court, and both deal with the same bundle of documents. As such, it would be beneficial to have both matters heard simultaneously. I am informed this is possible, but I do not know the wording.

Hi again, if there are already two applications before the high court, then your easiest way of dealing with them is to ensure that both are set down on the same day. You would therefore do a notice of set down for each of the matters, and to enroll them for hearing at the same day. You could mention in the notice of set down that they should be assigned to the same judge. That's all really. This is assuming that these are both applications. Otherwise, you can visit the high court and speak to the registrar who can assist you in ensuring that they are enrolled on the same day.

There are examples of set downs here.

Customer: replied 21 days ago.
Thank youAs to the previous comment, does one need to submit a written motion for a formal stay of proceedings to stop the magistrate from going ahead, or is it possible for it to be an oral submission? If it is a written application, could you please also provide a sample, or pro forma, example which we can use.

Hi there,

You could make an application by way of an oral submission from the bar.

Customer: replied 18 days ago.
A further question: What happens to the case if the exhibits are missing? i.e. the physical evidence seized by the police has gone missing? And also the original charge sheet? what happens if that is missing?

Hi there, then the prosecutor is going to have a REALLY difficult time in proving the case against you. Once the prosecutor has finished leading all of the evidence that they do have, you could ask that the Magistrate grants you "absolution from the instance", which means that the prosecutor has not met his case and you should be found not guilty!

Awaiting your positive rating!!! :-)

Customer: replied 1 day ago.
Legal attorney has not read our case transcript. He has had it for 12 months and now the magistrate says she is going ahead with the trial. Can she go ahead even though our attorney is unprepared or must she give us time to get another attorney? The legal aid attorney says he is not experienced enough and does not know enough to argue the case for us. Is his tardiness our responsibility?We have a review before the High Court. The DPP has phoned me and asked for a copy of the transcript. Whose responsibility is to provide that to them? Can they not just request a copy from the court.

Hi there,

I have previously answered your question, and you never rated it at all. Please can you do so, and then ask a further question. Thanks!

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