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[2014] ZAGPPHC 302
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S v Malesa and Others (A210/14) [2014] ZAGPPHC 302 (27 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE: 27 MARCH
2014
CASE NUMBER:
A210/14
HIGH COURT REF.
NO. : 240/2014
MAGISTRATE’S
SERIAL NO : 04/2013
CASE NUMBER :
BRC 66/2012
IN THE MATTER
BETWEEN:
THE STATE AND
BUTI JOHANNES
MALESA AND OTHERS
REVIEW JUDGMENT
TOLMAY, J:
[1] The learned
magistrate referred this matter by way of special review purportedly
in terms of sec 304(3) of the Criminal Procedure
Act 51 of 1977, (the
“CPA”).
[2] The accused were
charged with 35 different charges as set out in the charge sheet.
[3] The facts that
lead to the matter being sent for review were that the advocate, Mr
Sentso who appeared for accused no 1, and
apparently at some stage
also for accused no 4, was not properly instructed by an attorney.
This transpired during cross-examination
of the state’s first
witness. The proceedings were stopped and the matter was sent on
review to this Court. In his note to
this Court the learned
magistrate also reported that advocate Sentso was struck from the
roll under case number 71717/2011 by the
North Gauteng High Court. It
is not clear when he was struck from the roll.
[4] It is clear that
an irregularity occurred in the proceedings as the accused was not
properly represented.
[5]
Section 304(3) of the CPA, to which the learned magistrate referred
does not find application as this section only applies after
sentencing has occurred. Section 304 A also don’t find
application as there was not yet a conviction. This Court however
has
an inherent power of review which is augmented by sec 35(3) of the
Constitution. See
S
v Engelbrecht & Others 2005(2) SACR 383 C on 384 i-j-
[6]
In this instance the accused were not properly represented, and it is
appropriate for this Court to assume jurisdiction as the
irregularity
is of such a gross nature that the proceedings will eventually have
to be set aside. The accused’s right to
a fair trial was
compromised by the fact that they were not properly represented and
this constitutes a failure of justice. See
S
v Dhlamini
2008 (2) SACR 202
(T) at par (12) and (13).
[7] The following
order is made:
7.1 The
proceedings are set aside.
7.2
The matter is referred back to the Regional Court to start
de
novo
before another
magistrate.
R G TOLMAY
JUDGE OF THE HIGH
COURT
I agree
E JORDAAN
JUDGE OF THE HIGH
COURT