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South Africa: Free State High Court, Bloemfontein
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2017
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[2017] ZAFSHC 9
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S v Sekoto (R272/2016) [2017] ZAFSHC 9 (5 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Review
number: R272/2016
In
the matter between:
THE
STATE
and
SELLO
SAMUEL SEKOTO
CORAM:
DAFFUE,
J
et
REINDERS, J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
5
JANUARY 2017
AUTOMATIC
REVIEW IN TERMS OF SECTION 302(1)
OF
THE CRIMINAL PROCEDURE ACT, 51/1977
[1]
This is an automatic review. The accused was convicted of
robbery and sentenced to 12 months’ imprisonment.
He was
also declared unfit in accordance with s 103(1)(b) of Act 60 of 2000
to possess a firearm.
[2]
The transcribed record sent to the High Court contained the evidence,
arguments and judgment in respect of a bail application
pertaining to
the accused, but unfortunately and as indicated by the magistrate
when the matter was sent on review, the record
of the criminal trial
was partially transcribed only. The magistrate mentioned in her
letter of 18 November 2016 accompanying
the review record that she
had done everything within her powers to retrieve a fully transcribed
record, but without success.
She also indicated that neither
the prosecutor’s notes, nor her notes were available as these
had been destroyed on assumption
that the correct record had been
received from the transcribers.
[3]
The transcript of the trial record placed before us consists only of
the prosecutor’s address on conviction, the judgment,
the
evidence pertaining to accused’s personal circumstances, the
submissions on sentence by the prosecutor and the sentence.
No evidence whatsoever has been transcribed. The
same applies to the plea proceedings. It is impossible,
based
on the shortcomings, to consider this matter on automatic review.
[4]
There is no doubt that the conviction and sentence should be set
aside due to an incomplete record. I refer to
S
v S
1995 (2) SACR 420
(TPD) at 424b, S v Van Wyngaardt
1965 (2) SA
319
(OPD) at 320B and S v Joubert
[1990] ZASCA 113
;
1991 (1) SA 119
(AD) at 126D-I
.
Although these judgments deal with appeals and the impossibility of
reconstructing a proper record, the same should apply
in
casu
.
Automatic reviews are more in the nature of informal appeals rather
than reviews
stricto
sensu.
These
reviews are not limited to irregularities and any point which could
have been considered on appeal may be considered.
See
Hiemstra
loc cit
at
30-20(1).
[5]
The magistrate is also of the view that the conviction and sentence
should be set aside and her view point is endorsed.
[6] Therefore the
following order is made:
1.
The
conviction and sentence are set aside.
_____________
JP
DAFFUE, J
I
concur
_____________
C
REINDERS, J