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2015
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[2015] ZAFSHC 143
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S v Makutoane (116/2015) [2015] ZAFSHC 143 (24 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Special Review No.:
116/2015
DATE: 24 JULY 2015
In the matter between:
THE
STATE
...............................................................................................................................
Appellant
And
LEHLOHONOLO MAKUTOANE
JUDGMENT BY: VAN ZYL, J
DELIVERED ON: 24 JULY 2015
[1] This matter was sent on special
review in terms of
section 304(4)
of the
Criminal Procedure Act,
1977
, by the Control Magistrate, Bloemfontein, with an accompanying
letter stating the following:
“1. The accused appeared before
an Acting Magistrate on a charge of contravening
section 4(b)
of Act
No. 140 of 1992 - Possession of dagga.
2. His rights regarding legal
representation were not explained.
3. He pleaded guilty to the charge and
the Magistrate invoked section 112(1)(a) of the Criminal Procedure
Act, 1977 (Act No. 51
of 1977) and convicted and sentenced the
accused as follows:
‘Sentenced to12 months
imprisonment alternatively a fine of R1200.00, wholly suspended for a
period of 3 years on condition
that the accused is not found in
possession of dependence producing substance.’
4. Upon regular checks by the Control
Magistrate the following irregularities were detected:
4.1 The manner in which the sentence
was phrased is incorrect as the words ‘not convicted of
contravening section 4(b) of
Act 140 of 1992’ and ‘committed
during the period of suspension’ were omitted.
4.2 Review and Appeal rights were not
explained to the accused whereas the proceedings are subject to
automatic review by virtue
of the sentence imposed.
4.3 The offence that the accused was
convicted of as well as the sentence invites the application of
section 103(2) of the Firearms
Control Act, 2000 (Act No. 60 of 2000)
and from the record of proceedings it appears that the Magistrate did
not hold an enquiry
as mandated by the said Act.
4.4 The accused’s rights before
sentencing were not explained to him and the accused was not given
the opportunity to give
evidence, address the court and to call
witnesses on sentence.
4.5 The Prosecutor was not given the
opportunity to address the court before sentence.
5. In light of the above gross
irregularities, it is submitted that the proceedings were not in
accordance with justice.
6. The Honourable Reviewing Judge is
requested to set aside the proceedings and to order that the case
should start de novo.
7. The defects in these proceedings
have been brought to the attention of the Magistrate in question and
we hope that similar mistakes
will not be committed in future.
8. The record of proceedings is
forwarded herewith.”
[2] It is clear that the aforesaid
issues were correctly raised by the Control Magistrate as they indeed
constitute gross irregularities.
The proceedings were consequently
not in accordance with justice and should be set aside.
[3] The following orders are therefore
made:
1. The conviction and sentence are set
aside.
2. The matter is referred back to the
Court a quo for the accused to be prosecuted de novo before a
different presiding Magistrate.
C VAN ZYL, J