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[2010] ZAFSHC 31
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S v Kotoloane [2010] ZAFSHC 31 (11 March 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
(REPUBLIC
OF SOUTH AFRICA
)
Review No. : 101/2010
In
the review between:-
THE
STATE
versus
THABO
DAVID KOTOLOANE
_____________________________________________________
CORAM:
MOLEMELA
,
J
et
LEKALE, AJ
JUDGMENT
BY:
LEKALE,
AJ
_____________________________________________________
DELIVERED
ON:
11
MARCH 2010
_____________________________________________________
[1]
The
accused was convicted of and sentenced to 24 months imprisonment for
theft in the Magistrate’s Court at Marquard on the
22
nd
January 2010.
[2] The
matter, eventually, landed before me by way of review in terms of
section 302 read with section 304 of the Criminal Procedure
Act
no
.51 of 1977 as amended.
[3] A reading of the
record of the proceedings revealed that at the commencement of the
sentence stage of the trial the accused
indicated that he wished to
call a witness to testify in mitigation of sentence. The presiding
Magistrate duly directed the intended
witness to leave the court room
before the accused could take the stand.
[4] It
is, further, clear from the record that, after the accused had
testified, the Magistrate invited the prosecutor to address
the court
on sentence without affording the accused the opportunity to call his
witness. The Magistrate, eventually, concluded
the trial by imposing
sentence without the benefit of the evidence of such a witness.
[5] In
a letter enclosing the record of the proceedings the Magistrate
highlighted the aforegoing defect in the proceedings and,
after
apologising profusely for the same, proposed, inter alia, that, in
the event of the conviction being confirmed on review,
the sentence
be set aside and the matter be remitted for the hearing of such
evidence and the imposition of appropriate sentence.
[6] I
am in respectful agreement with the Magistrate on the proposed course
of action insofar as the accused’s constitutional
right to
adduce evidence in terms of section 35 (1) (i) of the Constitution of
the Republic of South Africa of 1996 includes
the right to call
witnesses. (see
S
v Younas
1996 (2) SACR 272
(c)).
[7] I
am satisfied that the conviction stage of the proceedings was in
accordance with justice. The same, however, cannot be said
about the
sentence stage which is, evidently, vitiated by the said gross
irregularity. (see
S
v Gwala
1989 (4) SA 937
(n)).
ORDER:
[8] For
the above reasons the conviction is confirmed and the sentence is,
hereby, set aside.
[9] The matter is
remitted to the Magistrate primarily for the hearing of further
evidence in mitigation from the accused’s
side, if available,
and the imposition of appropriate sentence thereafter.
_______________
L J LEKALE, AJ
I concur.
_____
_____________
M B
MOLEMELA,
J
/AM