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[2016] ZAGPPHC 315
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S v Molaba (A276/16) [2016] ZAGPPHC 315 (5 May 2016)
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
A276/16
5/5/16
Not
reportable
Not
of interest to other judges
Revised
Review
Case no : K698/ 2015
High
court ref no : 72/16
THE
STATE
v
MESHACK
SAMUEL MOLABA
REVIEW
JUDGMENT
J
W LOUW, J
[1]
The accused was arraigned before the Kwa-Thema magistrates' court on
a charge of contravening
s17(a)
of the
Domestic Violence Act 116 of
1998
and a charge of assault with intent to do grievous bodily harm.
After several postponements, the matter came before Acting Magistrate
J. M. Moloto on 7 December 2015. On that date, Mr. Moloto postponed
the matter to 28 January 2016 for trial. Due to a
bona fide
mistake, he noted on the J15 charge sheet cover that the accused
had pleaded guilty in terms of
s 112(
2
) of Act 51 of 1977 ("the
Act"), that the accused was found guilty and that he was
cautioned and discharged. Those notes
should have been made on the
charge sheet cover of another matter which served before Mr. Moloto
on that day, where the accused
was a Mr. Mbonani. Realising his
mistake afterwards, Mr. Moloto, in the absence of the accused,
deleted the plea, conviction and
sentence and wrote the word "ERROR"
between two parallel lines across the relevant part of the charge
sheet cover.
[2]
The Acting Senior Magistrate, Springs has referred the matter to the
High Court for a special review in terms of s 304(4) of
the Act. She
states in her submission that Acting Magistrate Moloto was
functus
officio
at the end of the trial and that he was therefore not
competent to a mend the record as such amendment could only be made
on application
by the prosecutor or the accused in terms of Rule
66(6) of the Magistrates' Court Act 32 of 1944. No such application
had been
made. The Acting Senior Magistrate is therefore of the view
that the proceedings were not in accordance with justice.
[3]
Sec. 304(4) of the Act only permits a special review after an accused
has been sentenced, not before. Sec. 304A permits a special
review
after conviction but before sentence. In the present matter, the
accused has not been convicted or sentenced. There is nothing
to set
aside. A review in terms of either of the sections is therefore
inappropriate. In my view, the erroneous inscription was
simply an
administrative error which was adequately rectified by the presiding
acting magistrate.
[4]
The Acting Senior Magistrate's view that an application for the
correction of the error should have been made by the prosecutor
or
the accused in terms of rule 66(6) of the Magistrates' Court Rules
is, with respect, not correct. The rule refers to an application
by
the prosecutor or the accused after judgment for correction of an
error in the court's record or a certified transcript thereof.
The
rule does not find application in the present matter.
[5]
In the result, the matter is remitted to the trial court for
finalization of the trial.
J W LOUW
JUDGE OF THE GAUTENG
DIVISION OF THE HIGH
COURT, PRETORIA
I agree
D S FOURIE
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH
COURT,
PRETORIA