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[2017] ZAGPPHC 205
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S v Olivier (A215/17, 92/17, S166/2006) [2017] ZAGPPHC 205 (25 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
A215/17
HIGH
COURT REFERENCE: 92/17
MAGISTRATE
CASE NUMBER: S166/2006
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
THE
STATE
vs
GARY
OLIVIER
SPECIAL
REVIEW JUDGMENT
AC
BASSON,J
[1] Mr
Olivier ("the accused") was arrested on a J50 which was
authorized after the SAPS could not find the accused on
a bench
warrant when he failed to appear in court in 2006 for sentencing
proceedings.
[2] The
Clerk of the Magistrate's Court could not find the original
charge sheet and the Prosecutor therefore
compiled a
Duplicate J15 in order for the accused to appear. It appears from the
file placed before this Court that the original
J
15
could not be located despite various attempts to locate the original
charge sheet.
[3]
According to the Prosecutor at the time as well as the accused, the
accused had already pleaded and the matter was remanded
for sentence
on the day that he failed to appear. The only information that the
accused was able to provide is that he was convicted
of theft of lawn
chairs. He is unable to recall the date of the theft and how many
chairs he had stolen. He is also unable to confirm
who the presiding
Magistrate was at the time and was also unable to recall whether he
was questioned by the Magistrate who convicted
him. The accused also
cannot recall who the prosecutor was. He was unable to even recall if
it was a male or female Magistrate.
[4]
Magistrate de Kok (Add Magistrate Stilfontein) undertook to
investigate the matter further. Magistrate de Kok was able
to
locate a copy of the court book of 6/2/2006 and from that he was able
to establish that Magistrate Flip du Tait convicted the
accused on
6/2/2006 and remanded the matter until 22/3/2006 for sentence.
Magistrate du Tait has since passed away.
[5]
Magistrate de Kok states that he is unable to reconstruct the charge
sheet and is therefore unable to proceed in terms of section
118 of
the Criminal Procedures Act, 51 of 1977.
[6] I
have considered the submissions submitted by Magistrate de Kok and I
am in agreement with the submission that under these
circumstances
the proceedings as well as the conviction of the accused must be set
aside in order for the accused to plead afresh.
[7]
I accordingly make the
following
order:
1.
The proceedings and the
conviction are set
aside.
2.
The matter is remitted to
the magistrate's court for a trail de nova.
___________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I agree
___________________
AC
BASSON
ACTING
JUDGE OF THE HIGH COURT