Gumbi and Others v S (414/2017) [2018] ZASCA 125 (26 September 2018)

Permanent stay of prosecution – recusal by trial judge before
finalisation of trial – discretion of Director of Public Prosecutions in respect of proceedings de novo – application for stay of prosecution triggered by delay caused by recusal – reasonableness of delay – no trial prejudice established.

Special review from Magistrates’ Court following recusal by presiding officer after plea and evidence, but before conviction – setting aside of proceedings and order to commence de novo requested Recusal renders presiding officer unavailable in absolute sense – proceedings a nullity and set aside ex lege – High Court’s inherent jurisdiction not engaged – commencement of proceedings de novo dependant on National Prosecuting Authority, not High Court Principles in Gumbi v The State (414/2017) [2018] ZASCA 125 restated and applied Lacuna in the Criminal Procedure Act, 51 of 1977 restated