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[2017] ZAFSHC 7
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S v Mokhethi (R50/2016(B)) [2017] ZAFSHC 7 (3 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R50/2016(B)
In
the matter between:
THE
STATE
and
THABO
PETER MOKHETHI
JUDGMENT
BY:
CHESIWE, AJ et NAIDOO, J
DELIVERED
ON:
24
NOVEMBER 2016
SPECIAL
REVIEW IN TERMS OF SECTION 304(4)
OF
THE CPA 51/1977
[1]
This matter came before us in chambers as a special review in terms
of section 304(2) of the Criminal Procedure Act 51 of 1977
(the act).
[2]
The accused was found guilty, in his absence, by the magistrate in
Kroonstad of possession of a firearm as envisaged in section
3 read
with section 1, 103 120 (1)(a), section 121 read with the
schedule 4 and section 151 of the firearms control Act 60
of 2000.
The
accused was sentenced to three years imprisonment. The accused
applied for leave to appeal against his sentence in January
2016. It
is not evident from the records whether leave to appeal was granted
as the provisions of section 302(1)(a) of the
Act are suspended by
the ruling of an appeal.
[3]
The first reviewing judge in chambers requested the trial magistrate
to submit a statement in terms of
section 304(2)
of the
Criminal
Procedure Act 51 of 1977
requiring him to comment on whether the
proceedings were in accordance with justice.
[4]
A query was directed to the presiding officer by Pienaar AJ who was
of the view that the proceedings were not in accordance
with justice,
as the proceedings took place in the absence of the accused and after
his legal representative withdrew upon the
recording of a plea of not
guilty by the court. The magistrate was also asked to comment
on whether the provisions of section
159 of the Act are applicable in
this matter, and if any attempts were made to allow the accused to
come to his senses for the
trial to proceed in his presence, with
reference to
S
v Mokoa
1985 (1) SA 350
(OPA).
[5]
The presiding officer supplied his comment and conceded that even
though the accused left the courtroom out of his own free
will, he
erred by continuing with the trial in his absence.
The
record shows that the accused wanted the matter to proceed in the
Regional Court.
Accused
:
“I will be happy if this matter is trailed (sic) at the
Regional Court.” (Line 13 page 3 of the
record)
Court:
The prosecutor decided it must be in this court and so it will be.”
(Page 4, line 1 of the record)
[6]
The magistrate indicated that it was not his intention to act
unfairly towards the accused and therefore suggested that the
case be
referred back for the trial to start de novo in the District Court at
Kroonstad.
[7]
The accused was found in possession of a fire-arm and possession of
ammunition, as envisaged in section 1, 103 117 120(1)(a),
section 121
read with Schedule 4 and
Section 151
of the
Firearms Control Act 60
of 2000
and further read with 250 of the
Criminal Procedure Act, 51
of 1977
and it was on this basis that the accused was tried in the
District Court. He was charged only with possession of a
firearm
and possession of ammunition. The charge sheet does not
indicate if the firearm is an automatic or semi-automatic weapon, and
is
described as a Rossi 38 Special. This appears to be the
reason why the matter was enrolled in the District Court. I
see
no reason to direct otherwise.
[7]
The matter is therefore referred back to the District Court.
ORDER
[8] In the circumstances
the following order is made.
1.
The
entire proceedings are set aside.
2.
The
matter is referred back to the District Court in Kroonstad for the
trial to start de novo before another magistrate.
3.
The
accused is to be informed of this order.
______________
S.
CHESIWE, AJ
I
concur
_____________
S.
NAIDOO, J