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South Africa: Free State High Court, Bloemfontein
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[2011] ZAFSHC 89
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S v Hlongwane (100/2011) [2011] ZAFSHC 89 (26 May 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA
Review No:
100/2011
In matter
between:
THE
STATE
V
SIMPHIWE
HLONGWANE
….................................................................
Accused
CORAM: CJ
MUSI,
J et KUBUSHI, AJ
JUDGMENT
BY: CJ
MUSI,
J
DELIVERED
ON:
26
MAY 2011
[1] The accused was convicted of
Arson by the magistrate Harrismith. He was sentenced as follows:
"Fined
R4000.00 or 8 (eight) months imprisonment. In terms of section 103
(2) accused not declared unfit."
Quoted
without emendation.
[2] The accused was
unrepresented and the matter was sent on special review. My brother
Lekale AJ noticed that the accused was not
invited to testify
although he indicated that he wished to testify. He then directed a
query to the magistrate wherein he asked
him to give reasons why the
accused was not invited to testify.
[3] The magistrate, in his
reply, concedes that it was an oversight and that the accused did not
have a fair trial as a result of
the oversight.
[4]
I
agree. This irregularity is such a gross departure from the
established rules of procedure that it can not be said that the
accused
had a fair trial. The whole proceedings are rendered abortive
by the irregularity. The whole proceedings ought to be set aside.
[15] I accordingly make the
following order:
1. The conviction and sentence
are set aside.
C.J.MUSI,
J
I
concur
KUBUSHI,
AJ