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[2016] ZAFSHC 137
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S v Green (R113/2016) [2016] ZAFSHC 137 (18 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
Nr: R113/2016
DATE:
18 AUGUST 2016
In
the matter between:
THE
STATE
And
FRANS
ALEXANDER GREEN
CORAM:
MOLOI, J
et
MD HINXA, AJ
JUDGMENT
BY:
HINXA, AJ
DELIVERED
ON:
18 AUGUST 2016
[1]
When this matter (from Boshof) served before the reviewing judge, the
latter raised the following query on 6 June 2016:
“
The
record of proceedings is hereby returned to the Magistrate to comply
with the provisions of section 304(4) of Act 51 of 1977.”
[2]
It admits of no doubt that the aforesaid query was sparked by the
fact that, according to the review cover (J4), the matter
was sent as
an ordinary, yet it was a special, review.
[3]
The Magistrate duly responded as follows:
“
3.1
This matter was submitted to the High Court for Special Review in
terms of the above cited provisions.
3.2
The record was referred back to me by the Honourable Review Judge
with the following query.
“
The
record of the proceedings is hereby return to the Magistrate to
comply with the Provisions of Section 304(4) of Act 51 of 1997.”
3.3
The back ground to the case is as follows:
3.3.1
The accused appeared before me on 04/04/2016 on a charge of
Contravention of the Provisions of Section 65(1)(a) of
National Road
Traffic Act 93 of 1996
– Driving under the influence of Liquor
or Drugs.
3.3.2
He was legal (sic) represented by Mr Lemmertjies from Legal Aid South
Africa (Kimberley).
3.3.3
The trial proceeded and evidence was led by both the State and
Defence.
3.3.4
The State then proceeded to address the court on the merits,
thereafter I then delivered Judgment and convicted the accused
as
charged without affording Mr Lemmertjies the opportunity to address
me in terms of
Section 175(1)
of
Criminal Procedure Act 51 of 1977
.
3.3.5
This was a bona fide error on my part and same is regretted. This
error was brought to my attention only after conviction.
3.4
I am of the view that the proceedings were not in accordance with
Justice due to the above irregularity.
3.5
I therein request the Honourable Reviewing Judge to set aside the
conviction and order that the proceedings be started de novo
before
another Presiding Officer.
3.6
The record of the proceedings is submitted therewith.”
[4]
In the context aforesaid and
ex facie
the record, it is significant, for the reasons that will unfold
hereunder, to highlight that the accused had just been convicted
but
not yet sentenced. Consequently, reference to, and reliance on,
section 304(4)
instead of
section 304A
, in the circumstances
obtaining
in casu
were misplaced. To lend credence hereto I deem it meet to hereunder
advert to both sections.
[5]
(a)
Section 304(4)
reads as follows:
“
If
in any criminal case in which a magistrate's court
has
imposed a sentence
which is not
subject to review in the ordinary course in terms of
section 302
or
in which a regional court has imposed any sentence, it is brought to
the notice of the provincial or local division having jurisdiction
or
any judge thereof that the proceedings in which the sentence was
imposed were not in accordance with justice, such court or
judge
shall have the same powers in respect of such proceedings as if the
record thereof had been laid before such court or judge
in terms of
section 303
or this section.”
(underlining
is mine)
(b)
Section 304A
on the other hand provides as follows:
“
(a)
If a magistrate or regional magistrate
after
conviction but before sentence
is of the opinion that the proceedings in respect of which he brought
in a conviction are not in accordance with justice, or that
doubt
exists whether the proceedings are in accordance with justice, he
shall,
without sentencing the
accused
, record the reasons for
his opinion and transmit them, together with the record of the
proceedings, to the registrar of the provincial
division having
jurisdiction, and such registrar shall, as soon as is practicable,
lay the same for review in chambers before a
judge, who shall have
the same powers in respect of such proceedings as if the record
thereof has been laid before him in terms
of
section 303.
(b)
When a magistrate or a regional magistrate acts in terms of paragraph
(a), he
shall
inform the accused accordingly and postpone the case to some future
date pending the outcome of the review proceedings and, if
the
accused is in custody, the magistrate or regional magistrate may make
such order with regard to the detention or release of
the accused as
he may deem fit.”
(my
underlinings)
[6]
One may do well to keep in mind that the two sections, as I see them,
bear material differences.
Section 304A
expressly enjoins the
magistrate to effect some transitional remedial steps to the accused
pending review. The section encapsulates
as peremptory “shall”,
which excludes any discretion on the part of the magistrate.
Section 304(4)
, on the other hand, does not encompass any similar
provision and that resonates well with the existence of a discretion.
[7]
Reverting to the facts of the present case, it is common cause that
the accused was legally represented during the proceedings
which are
a sequel to this review. Ordinarily,
section 304A
is not
applicable in such circumstances (see
S
v Klaase
1998 (1) SACR 317
(C)).
The exception to this rule is where the irregularity plaguing the
proceedings is so gross that the proceedings will eventually
have to
be set aside (see
S v Shamatla
2004 (2) SACR 570
(E) at 573h, 575g-h).
[8]
It is not open to doubt that the proceedings under consideration
resort under the latter category. The proceedings can thus
not
prevail.
[9]
Consequently, the following order shall issue:
“
The
conviction is set aside and the matter must start de novo before
another magistrate.”
M.
D. HINXA, AJ
I
concur.
K.
J. MOLOI, J