Retired Kimberley magistrate Smit du Plessis has filed an application to have charges that have been brought against him by way of a private prosecution to be struck off the roll.
RETIRED Kimberley magistrate Smit du Plessis has filed an application to have charges that have been brought against him by way of a private prosecution to be struck off the roll.
Du Plessis appeared in the Kimberley Magistrate’s Court this week on charges of fraud, perjury and defeating the ends of justice.
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.
The private prosecution is being pursued by Moroka, who alleges that Du Plessis was not legally appointed by the Minister of Justice and Constitutional Development or a delegated official to preside over their trial during 2007 to 2009, following his retirement.
According to the charges, Du Plessis allegedly made false sworn statements in April 2017.
Moroka believed that it was impossible to grant him and his co-accused a fair trial as evidence that was led under oath before Du Plessis had to be struck from the court record and witnesses had to be recalled to testify again.
In court papers, he stated that Du Plessis was unlawfully appointed as the regional court magistrate by the regional court president, Khwandilize Nqadala.
He pointed out that his co-accused Ross Henderson was targeted by former ANC provincial chairperson John Block.
Nqadala had previously acquitted Block in 2006 when he was accused of wasting taxpayers’ money to attend a jazz festival.
Moroka indicated that in 2011 he was advised by officials from the magistrate’s commission and the Department of Justice and Constitutional Development that they had no power to act against Du Plessis as he was no longer under their control.
He was advised to refer the investigation to the SAPS.
It was stated in correspondence that Du Plessis had taken early retirement at the age of 49 on February 28, 2007. Following enquiries that were conducted in 2012, the accused’s legal representative was informed by the president of the regional court in Kimberley, Khandilizwe Nqadala, that he was “unable to trace the acting appointment for Du Plessis after he vacated office in 2007”.
The legal representative for Du Plessis, Clarence Davis from the State attorney’s office, pointed out that the summons was not signed and should be declared null and void.
“The private prosecution was summoned in the name of the State. The summons should be struck off the roll.”
He indicated that his client was residing in the Eastern Cape and would only be able to attend court on July 10.
The legal representative for Moroka, Herholdt Robertson, stated that another summons would be issued should the matter be struck off the roll.
“The summons was served within the three-month period. The summons will simply be re-issued and placed back on the roll.”
Magistrate De Villiers reserved judgment and postponed the matter until July 10.
