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[2013] ZAGPPHC 541
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S v Masiya and Others (A158/13) [2013] ZAGPPHC 541 (7 March 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(
REPUBLIC
OF SOUTH AFRICA)
DATE: 4 March 2013
CASE NUMBER: A158/13
REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
Magistrates court,
Meyerton
Case no: B1310/01
High court ref no:
130/2013
THE STATE v THABO
MASIYA & 2 OTHERS
REVIEW JUDGMENT
J
W LOUW. J
[1] This matter has
been referred to this court for special review in terms of s. 304A of
Act 51 of 1977. The accused, Johannes
Tsotetsi, was the second of
three accused who appeared in the Meyerton magistrates' court on 27
August 2001. The three accused
were charged with the unlawful
possession of stolen property in contravention of s. 36 of Act 62 of
1955. The matter was not finalised
for the reasons mentioned below.
[2] What apparently
transpired is that at some stage prior to the finalisation of the
case, Tsotetsi, and apparently also the other
two accused, failed to
attend court and warrants for their arrest was issued on 29 November
2001. The warrant in respect of Tsotetsi
was executed eleven years
later in November 2012, resulting in him being brought before court
on 16 November 2012. The investigating
officer has advised that the
warrants for the other two accused have not been executed. The
original charge sheet could not be
traced and no indication of what
transpired in the case prior to the warrants of arrest being issued
could be found. The erstwhile
prosecutor is no longer available and
the magistrate has no recollection of the matter. On 5 December 2012,
the prosecutor placed
on record that it was indicated on the case
docket that the accused were convicted on 12 October 2001. This
inscription has since
been deleted, but it is not clear by whom. As
has been pointed out in the helpful comments provided by the office
of the Director
of Public Prosecutions, it is very likely that the
accused were in fact convicted on 12 October 2001 since the
postponements on
16 October 2001 and 23 October 2001, which are
indicated on the docket, were for "korrektiewe verslag",
which was no
doubt required for sentence purposes.
[3] In the absence
of any record of the 2001 proceedings in the case, no court will be
in a position to sentence the accused and
so bring the proceedings to
finality. Having regard to the considerable period of time which has
elapsed, it is extremely unlikely
that any attempt to reconstruct the
record will be met with success.
[4]
The magistrate who presided over the matter at the time has requested
that the conviction in respect of Tsotetsi be set aside
so that the
case against him can resume
de
novo
.
Sec. 304A empowers a judge in chambers to review proceedings before a
magistrate after conviction but before sentence if the magistrate
is
of the opinion that the proceedings which resulted in the conviction
were not in accordance with justice, or doubts whether
they were.
Although there appears to have been a conviction in the present
matter, there is nothing to suggest that the proceedings
were not in
accordance with justice. Sec. 304A is therefore not applicable.
[5] Our courts have
in the past accepted that they are able, in appropriate
circumstances, to intervene in the proceedings of lower
courts prior
to a conviction. See: S v Mathemba,
2002 (1) SACR 407
(E) and the
cases therein referred to. The test is whether grave injustice might
ensue if the court does not intervene.
[6]
If courts are able to intervene in proceedings of lower courts prior
to conviction, there can, in my view, be no reason in principle
why
they should not be able to intervene after a conviction but before
sentence, provided, of course, that the court is satisfied
that a
serious injustice will result if it does not intervene. Sec. 35(3) of
our Constitution, Act 108 of 1996, provides the necessary
authority
for the making of such an order. In terms thereof, every accused
person has a right to a fair trial. A trial which stops
at conviction
without the trial being concluded, cannot, in my view, be said to be
fair and will therefore be unconstitutional.
And it would be even
more unfair to charge a person
de
novo
where
a trial cannot be finalised after conviction because the court
records have, through no fault of the accused, gone astray
and cannot
be reconstructed.
To do that would, in
any event, offend against the provisions of s. 35(3)(m) of the
Constitution which provide that the right to
a fair trial includes
the right not to be tried for an offence in respect of an act or
omission for which that person has previously
been either acquitted
or convicted.
[7] In my view, this
is a case where a serious injustice will result if the conviction of
Tsotetsi and the other two accused were
not set aside. In the result,
I make the following order:
1. The convictions
of Thabo Masiya, Johannes Tsotetsi and Evelyne Motaung in Case no.
B1310/01 in the magistrates' court of Meyerton
are set aside.
2. Johannes Tsotetsi
is to be released from custody immediately.
3. The warrants of
arrest in respect of Thabo Masiya and Evelyne Motaung are cancelled.
J W LOUW
JUDGE OF THE
NORTH GAUTENG HIGH COURT
I agree
W.R.C.
PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT