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[2018] ZAGPPHC 758
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Masemola v S (A42/18) [2018] ZAGPPHC 758 (1 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
A42/18
Case
Number: 731/17
Special
Review: 24/18
01/03/2018
In
the matter between:
TYSEN
SEKOME
MASEMOLA
ACCUSED
V
THE
STATE
RESPONDENT
Coram:
PISTORIUS AJ
REVIEW
JUDGMENT
PISTORIUS
AJ
[1]
The matter has been referred to this court on special review, by the
magistrate of
Cullinan, Mrs P.W Engelbrecht.
[2.1]
The accused was charged in the District of Tshwane East, held at
Cullinan with one count of house
breaking with intent to steal and
theft.
[2.2] It w
s alleged that upon or about the period 20-21 December 2017 and at or
near Plot45, Pienaarspoort,
in the district of Tshwane East, the
accused unlawfully and intentionally and with the intent to steal,
break open and enter the
window of the room/shack of Khomotso Dorris
Mathiba and did then and there unlawfully and intentionally teal the
following items,
to with two (2)* cellphones, R500 cash, one (1)*
body mist perfume, one (1)* roll on, the property or in lawful
possession of Khomotso
Dorris Mathiba.
[3.1] The
accused elected to conduct his own defence.
[3.2]
On January 2018 , the accused pleaded guilty to the charge in front
of Magistrate N Mabunda.
[3.3] The
proceedings were not mechanically recorded, although ex facie the
record it was mechanically recorded.
[4.1]
The residing Officer Mr N.V Mabunda passed away on 10 January 2018.
[4.2] No
record of the proceedings were recorded, and according to the
information conveyed to the Magistrate
Engelbrecht, the stenographer
informed her that the recording machine was broken, and accordingly
the proceedings were not recorded.
[5.1]
The case was postponed to 9 February 2018, for typing of the record
and sentence proceedings in terms of Section 275(1) of
Act 51 of
1977.
[5.2]
Section 275 (1) of Act 51 of 1977 read as follows:
" If sentence is not
passed upon an accused forthwith upon conviction in a lower court, or
if by reason of any decision r order
of a superior court on appeal,
review or otherwise, it is necessary to add or vary any sentence
passed in a lower court or to pass
sentence afresh in such court, any
judicial officer of that court may, in the absence of the judicial
officer who convicted the
accused or passed the sentence, as the case
may be and after consideration of the evidence recorded and in the
presence of the
accused, pass sentence or take such other steps as
the judicial officer who is absent, could lawfully have taken in the
proceedings
in question if he or she had not been absent."
[5.3]
The Magistrate is the second judicial officer who must consider the
"evidence" recorded.
No evidence or plea proceedings were
recorded in
casu.
The Magistrate accordingly cannot consider
any evidence and is unable to make any findings.
[6]
I respectfully concur with the learned Magistrate reasoning. It is
unfortunate that
no measures were in place at the time of the hearing
to ensure the correct functioning I f the recording machine.
Certainly the
stenographer whose duty it was to ensure the proper
function thereof should have advised the presiding officer of the
defective
equipment. This failure to timeously alert the court to the
proper functioning or lack thereof of the recording equipment must be
avoided and measures be taken to avoid repetition thereof in future.
[7]
In the light of the above, I cannot make a finding that the
proceedings indeed were
in accordance with Justice. It follows that
the conviction must be set aside
[8]
ORDER:
[8.1]
The conviction of the accused is set aside.
P. PISTORIUS
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree.
A.J BAM
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA