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South Africa: Free State High Court, Bloemfontein
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2011
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[2011] ZAFSHC 3
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S v Nyaile (593/2010) [2011] ZAFSHC 3 (6 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 593/2010
In
the review between:-
THE
STATE
versus
PAUL
MZWAKE NYAILE
JUDGMENT
BY:
CILLIé, J
_____________________________________________________
DELIVERED
ON:
6 JANUARY 2011
_____________________________________________________
JUDGMENT
[1] This matter was heard
by an acting magistrate. It was sent for review by the control
magistrate in terms of section 304(4) Act
51 of 1977 on account of
serious flaws in the proceedings.
[2] The record does not
indicate what plea the accused tendered, no indication that section
112(1)(a) or (b) of the Act was applied,
personal and mitigating
factors extracted from the accused before sentence, no indication of
whether previous convictions were
proven, no explanation to the
accused that he may call witnesses on mitigation and ultimately an
incompetent sentence was imposed.
[3] The control
magistrate’s request that the proceedings be set aside, must be
granted.
The following order is
made:
The conviction and
sentence is set aside and the matter is remitted to the magistrate
for a
de novo
trial.
____________
C.B. CILLIé, J
/sp