ANGULA, A.J.:  The provisions of Section 304(4) Act 51/77 have been considered. The matter is not reviewable. The matter is remitted to the Magistrate to proceed with the hearing and finalise it.
This matter came before me for special review.
The letter by the Magistrate under cover of which the records of the proceedings were sent reads as follows:
The accused was charged with forgery and uttering a forged instrument, fraud and a four counts of theft of various amounts of money. She pleaded not guilty to all charges.
At the commencement of the trial the accused was represented by Mr Venter, however he withdrew whereafter the accused was represented by Mr Barnard. The matter was postponed on 22 March 2007 to 12 September 2007 for continuation of trial. At that juncture the defence was busy with the cross-examination of the second state witness. When the proceedings resumed on 12 September 2007, the following appears from the record:
Unfortunately the letters being complained of by the magistrate written by Mr Barnard to her supervisor do not form part of the record. I therefore do not know what words were “uttered” in those letters. Neither does it appear from the record what “misunderstandings” existed between the Magistrate and Mr Barnard.
The Magistrate was aware of the judgment of this court in the matter of The State v Erastus Itope, review case number 947/2002, delivered on 16 July 2002. None of the grounds enumerated in that case existed in the present case. In her own words, the Magistrate had no issue or problem with the accused. The letters complained of written by Mr Barnard concerned the Magistrate and not the accused. Her reasons for believing that she would not be objective do not, in my view, constitute adequate grounds for her to recuse herself from hearing the matter. I cannot see the reason why the Magistrate would transpond the enmity she might harbour towards Mr Barnard to the accused. Her apprehension is appreciated but she should remind herself that as a judicial officer she must exercise restraint so that her feelings towards the legal representative of the accused should not influence her judgment in the accused’s matter.
It was held in the matter of Itope that section 304(4) of the Criminal Procedure Act does not make provision for unterminated proceedings to be reviewed, especially in a case where no grave injustice might otherwise result. On the record of the present matter no grave injustice is apparent.
State v Hans Werner Newaka, review case number 2087/2001, delivered on 11 September 2001
In the result the following order is made:
 The provisions of Section 304(4) Act 51/77 have been considered. The matter is not reviewable. The matter is remitted to the Magistrate to proceed with the hearing and finalise it.
The provisions of Section 304(4) Act 51/77 have been considered.
The matter is not reviewable.
The matter is remitted to the Magistrate to proceed with the hearing and finalise it.