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[2015] ZAGPPHC 492
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S v Joseph (A434/15) [2015] ZAGPPHC 492 (1 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG
DIVISION, PRETORIA)
HIGH COURT REF NO:
190/2015
REVIEW CASE NO: SR
07/2015
CASE NO: A434/15
DATE: 01 JULY 2015
THE STATE
VS
GAVIN
JOSEPH
.....................................................................................................................
ACCUSED
SPECIAL REVIEW
JUDGMENT
TEFFO J
1. On 21 November 2012 the accused
pleaded guilty in the Magistrate’s court, Vereeniging, on a
charge of contravention of
section 4(b) of the Drugs and Drug
Trafficking Act, Act 140 of 1992 (“the Act”) - possession
of a dangerous dependence
producing substance. He appeared in person
and the court invoked the provisions of section 112(2) of Act 51 of
1977 (“the
Criminal Procedure Act”). He was found guilty
as pleaded and sentenced on 4 February 2013 to two years imprisonment
wholly
suspended for five(5) years on condition that he is not again
convicted of the offence of contravention of sections 3,4 and 5 of
the Act committed during the period of suspension. He was also
ordered to submit himself to a treatment programme placement under
a
supervision officer with a program content in order to realise the
objective of a suspended sentence and then enrol and attend
the SANCA
rehabilitation centre at Eldorado Park Ext 5 under the supervision of
Ms Dube.
2. The matter was subject to automatic
review.
3. The matter is before me on review
and I have been requested to set the conviction and sentence aside on
the basis that the mechanical
recordings of the plea proceedings as
well as the judgment, sentence and the reasons thereof are not
available. The stenographer
confirms that the proceedings were not
mechanically recorded due to a technical fault with the recording
equipment.
4. I referred the matter to the office
of the National Director of Public Prosecutions (NDPP) for comment.
The comments were received
and noted.
5. Where a matter is subject to
automatic review and the missing record cannot be reconstructed, the
conviction and sentence will
be set aside. In the absence of a record
of the proceedings a court of review will also not be able to
determine if the proceedings
were in accordance with justice or not.
(S v Williams 1982(4) SA 363(C) on p364; S v Fredericks 1992(1) SA
SASV 561(C).
6. There is no record of the
proceedings in this matter, viz, the guilty plea
proceedings, judgment and sentencing
proceedings. Reconstruction of the record appears to be impossible.
Without the record of the
proceedings in the court a quo, a court of
review will not be in a position to determine if the proceedings were
in accordance
with justice.
7. Under the circumstances the
proceedings in this matter ought to be set aside.
8. I therefore propose the following
order:-
8.1 The conviction and sentence of the
accused is set aside.
MJ TEFFO
JUDGE OF THE HIGH COURT
I agree
VV TLHAPI
JUDGE OF THE HIGH COURT
Dated at PRETORIA on this the 23rd
day of June 2015