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[2017] ZAFSHC 52
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S v Ntakatjane (271/2014) [2017] ZAFSHC 52 (30 March 2017)
I
N
THE
H
I
GH
COURT OF
SOUTH
AFRICA,
FREE
STATE D
I
VIS
I
ON.BLOEMFONTEIN
Case
number: 271/2014
In
the matter between:
THE
STATE
and
THABANG
NTAKATJANE
CORAM:
LEKALE,
J
et
MOTIMELE, AJ
DEL
I
VERED
ON:
30 MARCH 2017
REVIEW
JUDGMENT
MOTIMELE,
AJ
[1]
The accused was convicted of assault with the intent to
do grievous bodily harm and sentenced to 18 months
imprisonment
on the 11 December 2014.
[2]
The record in this matter served before my brother Moeng AJ on
the
04
th
of March 2015. He remarked as follows to the
Registrar
"Will
you kindly convey the following remarks to the Magistrate in
this
matter and return the
record to him for his
comments:
1.
The review
cannot
be
considered
by
a
High
Court
Judge
because
there is not an original charge sheet in the file (sic).
2.
The
Judge
also
requested
a
typed version
of the
original
charge
sheet."
[3]
The above remarks were forwarded by the Registrar of this Court,
promptly to the Magistrate-Zastron.
[4]
The case record was only resubmitted to the
Registrar on 16 February 2017, a period
of more than two
years later.
[5]
The clerk of the court one
K. Phayane,
writes that the delay
was occasioned by "poor filing from our office," and that
the delay was regretted.
[6]
I am satisfied that the proceedings in this case appear to me to be
in accordance with justice.
[7]
There is however, a matter of grave concern to me. The
inordinate delay herein is unacceptable. It leads to a failure
of
justice.
[8]
The responsible officer at Zastron Magistrate Court is directed to
put systems in place to avoid the recurrence of delays of
this nature
in review matters.
[9]
I further direct that a copy of this judgment be forwarded to both
the Judge President of this Division as well as the Director
General of the Department of Justice and Constitutional Development
for information and to consider any steps they might deem meet.
[10]
The magistrate explained the accused rights as follows:
"The
matter
is reviewable
and
the
court
will
have
his
matter transcribed
within five or within
a
reasonable period
of time/ and the transcript
thereof
to
be send
to
the
reviewing
judge
to
consider whether
the proceedings
in
this matter
were in accordance
with the
law
(sic) time and
the transcript
thereof
to be send
to the
reviewing judge
to
consider whether
the
proceedings
in
this
matter were
in accordance with the law."
[11]
Section 303
of the
Criminal Procedure Act 51 of 1977
reads as
follows:
"303
The Clerk of the court in question shall within one week after
the
determination
of
a
case
referred
to in
paragraph
(a)
of
section 302
(1)
forward
to
the
registrar
of
the
provincial or
local
division heaving jurisdiction the
record
of
the proceedings
in
the
case
or
a
copy
thereof
certified by
such
clerk,
together
with such remarks
as
the presiding
judicial officer
may
wish
to
append
thereto,
and
with any written
statement
or
a
rgument
which the person
convicted
may within three days after imposition
of the sentence furnish to the clerk of
the
court,
and
such
registrar
shall,
as
soon
as
possible,
lay
the same in chambers
before
a
judge
of
that division for his
consideration. "
[12]
It is clear from
section 303
that what the magistrate was supposed to
explain to the accused is:
-
that the matter is reviewable;
-
that it would be sent to the High Court in one week;
-
that the magistrate may include a statement by himself/herself; and
-
(most importantly) that the accused has the right to make
representations and submit same to the clerk of the court within 3
days after sentence.
[13]
The magistrate did not explain the accused rights adequately. He
omitted the most important part. He rather promised
the accused
that he would be informed about the outcome of the review.
Section
303
contains no such requirement.
[14]
It is not advisable for the magistrate to overpromise or make
promises he could not deliver on.
[15]
None of the above happened. The least said about what happened the
better, suffices to say it (the inordinate delay) detracts
from the
purpose of the section and defeats the intention of the legislature.
[16]
Accordingly I propose the following order:
16.1
The review is confirmed.
16.2
The registrar is directed to send copies of this judgment to the
Director General & Constitutional Development
and the Judge
President of this Division.
_____________________
A.
M. M MOTIMELA, AJ
I
agree
_____________________
L.
J. LEKALE, J