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[2006] ZAFSHC 85
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S v Miya (759/2006) [2006] ZAFSHC 85 (13 July 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No: 759/2006
In the matter between:
THE STATE
and
MAKOELE WILLIAM
MIYA
_____________________________________________________
REVIEW JUDGMENT
_____________________________________________________
CORAM
: KRUGER,
J
_____________________________________________________
JUDGMENT
BY
: KRUGER,
J
_____________________________________________________
DELIVERED ON
: 13
JULY 2006
_____________________________________________________
[1] This is a special
review, referred to this court on the grounds set out below:
[2] The accused failed to
appear before court on 28/3/2006 in terms of a
section 56(1)
of the
Criminal Procedure Act No 51 of 1977
notice. He had also not
timeously paid the amount of R400,00 determined as admission of guilt
fine by the Traffic Officer who had
issued the notice to him on
20/2/2006.
[3] However in his place
appeared Mr Mafeka Sergeant Miya a relative and alleged owner of the
vehicle which was on 20/2/2006 driven
by the accused. The prosecutor
had earlier been approached by the alleged owner saying that he was
the accused driver. It was before
the court commenced its session on
28/3/2006.
[4] When the names of the
accused were called out by the court orderly, the alleged owner
entered the court room and was directed
to the dock. In all respects
he indicated that he was the accused.
[5] The accused's rights
were fully explained to him i.e. the charge and his right to legal
representation including legal aid by
the presiding judicial officer.
The accused indicated that he understood and elected to conduct his
own defence.
[6] The prosecutor
proceeded to read the charge to the alleged accused who tendered a
plea of guilty. The court thereafter found
him guilty in terms of
section 112(1)(a)
of the
Criminal Procedure Act 51 of 1977
. No
previous convictions were proven by the State.
[7] The stage of
sentencing was commenced with. The accused's rights were fully
explained and he elected to tender evidence under
oath and to call a
witness. When the alleged accused began his evidence on the witness
stand, he revealed for the first time that
he was not the real
accused as depicted in the charge sheet or notice. He stated that he
was in fact the owner of the vehicle and
did not drive the vehicle on
20/2/2006. He added that the driver had left his employment. At
that stage the court immediately discontinued
the proceedings for the
purpose of sending the record on a special review of the proceedings.
[8] On the following day
the real accused unexpectedly appeared before court and properly
identified himself in court. After his
rights were fully explained
the proceedings were remanded pending the special review of the
proceedings in respect of the alleged
owner of the vehicle.
[9] The presiding officer
requests the reviewing judge to set aside the proceedings which
involved the alleged owner in order that
the case against the real
accused may be continued with. It is the presiding officer's view
that this would be the correct procedure
to follow and that a plea of
not guilty could not be recorded against the wrong accused in the
dock on 28/3/2006.
[10] In
the result the following order is made:
The
proceedings on 28 March 2006 in case no. DT290 in the magistratesâ
court for the district of Witsieshoek held at Phuthaditjhaba
are set
aside.
_______________
A.
KRUGER, J
/mp