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[2011] ZAGPJHC 28
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S v Raja and Another (57/11) [2011] ZAGPJHC 28 (13 April 2011)
IN THE SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
REVIEW CASE: HIGH
COURT REF NO: 57/11
MAGISTRATE’S
SERIAL NO. 07/2011
JOHANNESBURG CASE NO:
41/2712/2009
DATE: 13/04/2011
In the matter between:
THE STATE
and
NEVILLE RAJA
Accused
No.1
MOKHINA
MOTAUNG
.....
Accused
No.2
JUDGMENT: SPECIAL
REVIEW
WILLIS J:
[1] This matter has been
referred to me by way of special review in terms of
section 304
of
the
Criminal Procedure Act, No. 51 of 1977
, as amended.
[2] Both accused had been
arraigned in the Johannesburg Regional Court on charge of
Housebreaking. They were arrested on 26th December,
2009 and are
currently in custody, Accused No.2 having had his bail revoked after
conviction.
[3] It has come to light,
after the conviction of the accused but before their sentencing that
Mr Molwedi who represented them was
a candidate attorney without
having any right of appearance in court.
[3] The learned
magistrate, Mr Petersen, has accordingly requested that the High
Court set aside the convictions of the accused
and direct that the
trial proceed
de novo
before a different magistrate.
[4] Having regard to the
record of the proceedings which the learned magistrate has helpfully
reconstructed, I am satisfied that
justice will be well served by
making such an order, subject to a residual discretion in the hands
of the Director, Public Prosecutions.
[5] Two further points
need to be made. The first is that it is a most unsatisfactory state
of affairs that so much inconvenience
should be caused by a candidate
attorney not knowing his correct status when it comes to representing
accused persons. The learned
magistrate should report the matter to
the law society, not so much to punish the Mr Molwedi as to take
steps to ensure that repetitions
of this kind of incident are
minimised.
[6] The second is that
the magistrate who hears the matter
de novo
should be
appraised of this judgment so that he or she may take special care to
ensure that no injustice is done either in
convicting or acquitting
the accused. If the accused are indeed convicted, the time wasted
through the necessity for reviewing
the proceedings should be taken
into account on sentence.
[7] Clearly this is case
where the hearing
de novo
should be expedited.
[8] The Following is the
order of the court:
1.
The trial proceedings in this matter
before the magistrate, Mr Petersen, are set aside;
2.
The trial may commence
de
novo
before another magistrate in the
discretion of the Director, Public Prosecutions.
DATED AT JOHANNESBURG
THIS 13th DAY OF APRIL, 2011.
N.P.WILLIS
JUDGE OF THE HIGH
COURT
I agree.
F.H. D. VAN OOSTEN
JUDGE OF THE HIGH
COURT