Case against retired magistrate struck off roll

RETIRED Kimberley magistrate Smit du Plessis succeeded in having a private prosecution against him struck off the roll in the Kimberley Magistrate’s Court this week.

Du Plessis was charged with fraud, perjury and defeating the ends of justice, where a private prosecution was brought against him for presiding over a case on three occasions without an appointment letter.

Du Plessis was the presiding officer in a case dating back to 1998 involving charges that were brought against Freddy Witbooi, the chairperson of the Northern Cape Civics Organisation Ross Henderson and Itumeleng Jack Moroka, relating to a stolen cheque.

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Moroka, who brought the private prosecution against Du Plessis, alleged that he was not legally appointed by the Minister of Justice and Constitutional Development or a delegated official to preside over their trial during May and August 2007, following his retirement.

Du Plessis’ legal representative, Clarence Davis from the state attorney’s office, stated that the private prosecutor had failed to rectify omissions and technical issues on the summons.

“The summons was not signed and the required deposit was not paid. The court does not have the right to amend the summons.”

He added that the Minister of Justice could delegate powers to retired magistrates to finalise partly heard matters.

“Du Plessis is still a magistrate and did not need a special appointment. No prejudice was suffered by the accused as no evidence was led and it was only for the purpose of postponements. The accused appealed the matter, where it was dismissed in the Northern Cape High Court.”

The legal representative for Moroka, Herholdt Robertson, stated that this provision only came into effect after Du Plessis had presided over the case without a proper appointment letter from the Minister of Justice.

“The regional court president, Khandilzwe Nqadala, indicated that he was not able to trace the acting appointment for Du Plessis after he vacated office. Therefore there was no magistrate on the bench.”

Magistrate De Villiers indicated that the nolle prosequi certificate was issued on February 23 while the summons was issued by the clerk of the court on April 1 with the court appearance set for June 7.

“The deposit of R2 500 was paid on May 26. The deposit must be paid at the Kimberley Magistrate’s Court before the summons is issued and must be signed by the private prosecutor. No amount was determined by the court as security.”

She added that the signature of the private prosecutor was a material requirement.

“The accused may ignore an unsigned summons. The clerk of the court should not have issued the summons without security.”

She struck the matter off the roll but did not make a cost order as Du Plessis’ legal costs were funded by the state attorney’s office.