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[2009] ZAGPPHC 289
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S v Mabuza and Another (C2063/2007) [2009] ZAGPPHC 289 (25 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Date:
25/09/09
Magistrate
WITBANK
Case
number: C2063/2007
High
Court reference number:
1121
THE
STATE VERSUS TERANCE MABUZA & WILLIAM BESALAKNE JIYANE
REVIEW
JUDGEMENT
Pretorius
J
This
case came to court as a special review in terms of section 304(4) of
Act 51 of 1977.
The
accused were represented by Mr Mashamba. They pleaded not guilty. The
state and the two accused adduced evidence. The state
and defence
closed their
In
S v Muller and Others
2005 (2) SACR 570
(E) the facts of the matter
were similar to the facts in the present case. Pickering J with whom
Plasket J concurred found at 575
G-H:
“
The
accused is given the right to
a
public trial to ensure that justice is seen to be done. The right to
a public trial would include a right to participate fully
in the
proceedings, be it by way of adducing and challenging evidence, or by
way of addressing court on the merits of the case
after the
conclusion of evidence. It would include a right to participate
meaningfully in the conduct of the trial, from the pleading
stage of
the proceedings up to the pronouncement of the verdict. If the
accused is represented by a legal practitioner, the right
would
include the cross- examination of witnesses and the challenging of
evidence in the presence of the accused, unless lawfully
removed from
the proceedings by lawful order. ”
In
the circumstances, having regard to the record, the magistrate’s
remarks, the Director of Public Prosecutions remarks and
the
authorities it is quite clear that the failure to afford the parties
the opportunity to address the court is a gross irregularity.
The
accused rights to a fair trial in accordance with the provisions of
section 35 (3) of the Constitution of the Respondents have
been
flouted.
The
proceedings were not in accordance with justice.
The
following order is made:
1.
The conviction is set aside
C.
Pretorious
Judge
of the High Court
I
agree,
M
F LEGODI
Judge
of the High Court