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2009
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[2009] ZAGPPHC 72
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S v Joubert (A149/09) [2009] ZAGPPHC 72 (2 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(
TRANSVAAL
PROVINCIAL DIVISION
)
CASE
NUMBER:"14/00997/2008
H/C
REFERENCE:PR 3/09
REVIEW: 1/4/13SH
In
the matter between:
THE
STATE
And
JACOBUS
JOUBERT
SPECIAL
REVIEW JUDGMENT
TLHAPI,
A.J
[1]
The Regional Magistrate, Pretoria, referred this matter on special
review because the proceedings were not in accordance with
justice.
He released the accused on warning.
[2]
The accused was convicted of robbery in the Magistrate's Court and
referred to the Regional Court for sentence in terms of section
122
(C)(2)(a) of the Criminal Procedure Act 51 of 1977 ( hereinafter
referred to as "the Act").
[2]
The case was postponed over several months before the record of
proceedings was availed for scrutiny by the regional magistrate.
According to him, the record revealed the following irregularities:
(i)
The
accused conducted his own defence and pleaded not guilty on the 2
October 2007. He declined to disclose the basis of his defence.
The
magistrate swore in a state witness Jolanda Jacobs. Her evidence was
not taken down due to the absence of on an Afrikaans speaking
interpreter. The record then reflects that the matter proceeded on
the
4
March 2008, on which occasion the accused's previous convictions were
proved.
(ii)
There
was no record available of the evidence of the state witnesses, and
of the accused (that is, if he had elected to testify).
Furthermore,
the judgment was not available. The regional magistrate could
therefore not determine on what basis the accused had
been convicted
and whether the conviction was in accordance with justice.
(iii)
The
accused was referred in terms of section 122(C)(2)(a) of the Act.
This sections provides for the referral to the regional court
for
sentence where the accused had pleaded guilty and, the magistrate was
satisfied that he admitted all the allegations in the
charge. In this
instance, the accused pleaded not guilty. The regional magistrate
lacked the authority to refer the accused back
to the magistrate's
court in order for him to be properly referred to the regional court
for sentence.
[3]
I referred the matter to the Director of Public Prosecutions. Mr E
Leonard S C and Mr PCB Luyt of that office responded. They
confirmed
the erroneous referral and, submitted that neither was section 122(D)
in the circumstance applicable.
According
to them, the accused should have been referred in terms of section
116 of the Act, which provided for the referral for
sentence after a
trial in the magistrate's court. In terms of section 116(3)(a) of the
Act the regional magistrate was entitled
to request the magistrate's
reasons for conviction. It would have been appropriate that such
request be coupled with an instruction
that the record be
reconstructed in accordance with the procedures stipulated in S v
Joubert
[1990] ZASCA 113
;
1991 (1) SA 119(A).
On completion of these tasks the matter
could be referred back to the regional court in accordance with
section 116 of the Act.
Furthermore, that if the record could not be
reconstructed, only then could the matter be referred to the High
Court in terms of
section 304(A) of the Act. I am in agreement with
such view.
[4]
In the absence of any explanation from the magistrate about the state
of the record of proceedings, his reasons for conviction
and the
reason why the record could not be reconstructed, the conviction of
the accused cannot be set aside. A copy of this judgment
should be
sent to the magistrate concerned of the district court to further
attend to the matter.
[5]
In the circumstances the following order is made;
The
referral to the regional court for sentence in terms of section 122
(C)
(2)(a)
of Act
51
of
1977 be set aside;
That
the accused be referred back to the magistrate's court and accused
is to remain on warning.
TLHAPI
V V
(ACTING
JUDGE OF THE HIGH COURT, PRETORIA)
I
agree
MOLOPA,
L
(JUDGE
OF THE HIGH COURT, PRETORIA)