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[2008] ZAFSHC 125
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S v Nagel (522/2008) [2008] ZAFSHC 125 (6 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 522
/2008
In
the review between:-
THE
STATE
versus
H
J B NAGEL
_____________________________________________________
CORAM:
MOLEMELA, J
et
MOLOI,
AJ
JUDGMENT
BY:
MOLEMELA, J
_____________________________________________________
DELIVERED
ON:
6 NOVEMBER 2008
_____________________________________________________
[1]
The
matter came before me as an automatic review brought in terms of the
provisions of section 304A of the Criminal Procedure Act,
Act 51 of
1977 (Criminal Procedure Act).
[2] The
accused person was convicted by the district court at the Parys
Magistrate’s Court pursuant to a plea of guilty.
The matter
was then postponed so as to obtain the accused’s record of
previous convictions (SAP 69) Before the accused’s
SAP 69
could be obtained the magistrate, by oversight, transferred the
matter to the Parys Regional Court, purportedly in terms
of the
provisions of Section 75 (2) (b) of the Criminal Procedure Act. I
have accordingly been requested to exercise my powers
of review by
setting aside the transfer of the matter to the regional court so
that the accused’s sentencing can be proceeded
with in the
district court by the magistrate who convicted him.
[3] I
requested the office of the Director of Public Prosecutions to give
input on the matter. Adv Botha from that office commented
as
follows
:
“It does not appear from the record of this case that the
prosecutor requested the transfer of this case to the Regional
Court,
nor can a matter be transferred in terms of section 75 (2) (b) of
Act 51 of 1977 where an accused has already pleaded
guilty and has
been convicted.”
[4] I
agree with Adv Botha that a matter cannot be transferred in terms of
section 75 (2) (b) of the Criminal Procedure Act by the
magistrate
mero
motu.
This
view is fortified by the court’s remarks in
S
v KHALEMA
AND
FIVE SIMILAR
CASES
2008 (1) SACR 165
(CPD)
at
172 f-j and especially at 172 l -173 a where the following was
stated: “Section 75 is clear: it provides that a case cannot
be
transferred to the regional court or the High Court unless the
prosecutor so requests…. The district court cannot
therefore
transfer a case to the regional court unless requested by the
prosecutor or unless the prosecutor has indicated that
a case will be
transferred for purposes of trial to a court designated by the
prosecutor.” Also see Ex Parte
Prokureur
– Generaal
Transvaal
1978 (4) SA 15
(TPA).
[5] Although
section 114 (1) of Act 51 of 1977 does allow a magistrate to,
mero
motu,
transfer the case, the jurisdictional facts warranting this action
must appear from the record, such as the number and nature
of
previous convictions. This provisions is not applicable
in
casu
for two reasons, viz (1) the magistrate purposed to be acting in
terms of section 75 (2) (b) of the Criminal Procedure Act and
(2) the
jurisdictional factors warranting such a transfer are not apparent
from the record.
[6
] I
accordingly make the following order:
The conviction is
confirmed
The referral of Case No
214/2008 from the district court in Parys to the Regional Court in
Parys is set aside.
The
matter is referred back to the district court at the Parys
Magistrate’s Court for finalisation by the magistrate who
initiated the trial, viz G C Prinsloo.
_
_______________
M B
MOLEMELA
,
J
I concur.
_____________
K J MOLOI, AJ