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[2014] ZAFSHC 166
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S v Moholo and Another (179/2014) [2014] ZAFSHC 166 (9 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No. : 179/2014
DATE:
09 OCTOBER 2014
In the review
between:-
THE STATE
versus
SELEKE
MOHOLO
...............................
Accused
1
DAVID
MOLALE
..................................
Accused
2
CORAM: RAMPAI,
AJP et JORDAAN, J
JUDGMENT BY:
JORDAAN, J
DELIVERED ON: 9
OCTOBER 2014
[1] In this matter
the two accused were charged with possession of suspected stolen
property in contravention of section 36 of Act
62 of 1955. They were
not legally represented and pleaded guilty after which they were
convicted and sentenced to a fine of R1
000,00 or 2 (two) months
imprisonment wholly suspended for a period of three years on
condition that they are not convicted of
contravention of Act 62 of
1955 committed during the period of suspension. The senior
magistrate of Welkom referred this matter
to court for a special
review in terms of
section 304(4)
of the
Criminal Procedure Act, No
51 of 1977
.
[2] The learned
magistrate remarks that the record of the proceedings appears to be
unavailable and could not be found despite various
attempts to obtain
the original or copies of the record. He was also not able to obtain
a reconstruction of the court proceedings.
[3] The magistrate
then remarks that it is not clear whether the conviction was brought
forward by applying
section 112(1)(a)
or
112
(1)(b) of the
Criminal
Procedure Act, 51 of 1977
and also remarks that the suspension
condition is vague, wide and non-specific to the prejudice of the
accused.
[4] All that is
available concerning the record is the J15 in which it appears that
the accused pleaded guilty and were convicted
accordingly.
[5] Since it appears
that the record is not available, it is impossible to find whether
the record is in order and whether the accused
were properly
convicted and sentenced. As regard the sentence, it is of course
clear that the suspending conditions is too wide
and cannot be
sustained in the form that it was given by the trial magistrate.
[6] In view of the
above it is clear that it is unknown and cannot be ascertained
whether the accused did have a fair trial or not.
[7] In the result
the conviction and sentences in regard to both accused have to be set
aside.
[8] In conclusion
the convictions and sentences of both accused are set aside.
A.F. JORDAAN, J
I concur.
M.H. RAMPAI, AJP
spieterse