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[2017] ZAGPPHC 834
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S v Nkosi and Others (A208/10) [2017] ZAGPPHC 834 (20 March 2017)
REPUBLIC OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: A122/2017
20/03/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
High
Court ref: A208/10
Review
Case no: B468/12
Mag.
Serial no: 27/16
In
the matter between:
THE STATE
v
THANDIWE NKOSI & 2
OTHERS
REVIEW JUDGMENT
J
W LOUW, J
[1]
The record of the proceedings in this matter in the magistrates'
court, Lesedi have been submitted to this court for special
review in
terms of s 304A of the Criminal Procedure Act, 51 of 1977 (the Act).
The three accused were convicted on 24 January 2012
by magistrate Van
Niekerk who, before handing down sentence, became ill and
subsequently vacated her office on 24 August 2012 due
to ill health.
Before vacating her office, magistrate Van Niekerk had received
evidence in respect of sentence and had remanded
the matter on 28
March 2012 for a correctional supervision report.
[2]
In the letter in which the special review is sought, magistrate De
Bruin requests that the conviction against all three accused
be set
aside and that the prosecution should proceed
de novo
against
the accused.
[3]
After magistrate Van Niekerk became unavailable, the matter was
postponed on a number of occasions by other magistrates for
transcription of the record and submission thereof on special review.
The missing transcription relates to the evidence on behalf
of the
defense, the court's judgment and the evidence in respect of
sentence. It does not appear from the record if the correctional
supervision report was received. The matter was eventually struck
from the roll on 6 December 2012.
[4]
It is not clear whether the other magistrates who dealt with the
matter were aware that the accused had been convicted by magistrate
Van Niekerk. Section 275 of the Act provides the following:
If sentence is not
passed upon an accused forthwith upon conviction in a lower court
,
or if, by reason of any decision or order of a superior court on
appeal, review or otherwise, it is necessary to add to 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
on the accused
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.
(Emphasis added).
[4]
Section 275(1) clearly finds application in the present matter and
should have been employed in order for the matter to proceed
after
magistrate Van Niekerk became unavailable. The fact that she received
evidence in respect of sentence is of no consequence.
Such evidence,
together with the evidence received before conviction and any further
evidence in respect of sentence which may
be tendered, including a
correctional supervision report, will have to be considered by the
sentencing magistrate when passing
sentence.
[5]
The letter of magistrate De Bruin explains that the service provider
responsible for the transcription of the record was replaced
with
another service provider during 2016. That appears to be the reason
why the missing parts of the record have not been transcribed.
There
is no indication that any attempts have been made to retrieve the
voice recordings from the original service provider in
order for them
to be transcribed. This is something which must be done. If a
diligent search for the voice recordings proves to
be fruitless,
proper attempts should be made to reconstruct the missing part of the
record. That will include obtaining the input
of the trial magistrate
Ms Van Niekerk if she is available.
[6]
The order which I make is the following:
[a] The clerk of the
court is instructed, assisted where necessary by magistrate De Bruin
and/or any other magistrate of the Lesedi
magistrates' court, to take
all reasonable steps to retrieve the voice recordings of the missing
part of the record from the previous
service provider or anyone else
in whose possession they may be, and to arrange for them to be
transcribed.
[b] In the event of it
not being possible to retrieve the said voice recordings, the clerk
of the court is instructed, assisted
where necessary by magistrate De
Bruin and/or any other magistrate of the Lesedi magistrates' court,
to take all reasonable steps
to reconstruct the missing part of the
record.
[c] Once the missing part
of the record has been transcribed or reconstructed, the matter must
proceed before any other magistrate
of the Lesedi magistrates' court
for sentencing in terms of s 275(1) of Act 51 of 1977.
______________
J
W LOUW
JUDGE
OF THE HIGH COURT
I
agree
_____________
A
J BAM
JUDGE
OF THE HIGH COURT