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2006
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[2006] ZAFSHC 148
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S v Mosia (255/2006) [2006] ZAFSHC 148 (16 March 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 255/2006
In the review between:-
THE STATE
versus
TSHIDISO DAVID
MOSIA
_____________________________________________________
CORAM:
VAN
DER MERWE J
et
VAN
ZYL J
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE J
_____________________________________________________
DELIVERED
ON:
16
MARCH 2006
_____________________________________________________
[1] Despite
his plea of not guilty, the accused was convicted of robbery in die
magistrateâs court for the district of Witsieshoek
held at Makoane
and on 9 February 2005 sentenced to a fine of R2 000,00 or 12
(twelve) months imprisonment. As a result the matter
was subject to
automatic review in terms of section 302 of the Criminal Procedure
Act.
[2] In
a letter received by the Registrar of this Court only on 8 March
2006, the magistrate reported that due to defective recording
apparatus, no recording of the proceedings was made. The magistrate
further stated that her notes of the proceedings were stolen
from her
office during a burglary and that as a result it is impossible to
reconstruct a record of the proceedings. There is no
reason not to
accept this statement.
[3] Automatic
review in terms of the Criminal Procedure Act provides protection to
undefended accused persons and is compulsory.
Therefore, when in a
case subject to automatic review, it is established that it is
impossible to reconstruct a lost or materially
defective record of
the proceedings, the relevant conviction and sentence must be set
aside. See
S
v FREDERICKS
1992 (1) SACR 561
(C). This accords with the position applicable to
lost or defective records in criminal appeals. See
S
v JOUBERT
[1990] ZASCA 113
;
1991 (1) SA 119
(A) at 126.
[4]
The
conviction and sentence are set aside.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
____________
C. VAN ZYL, J
/sp