S v Zondi (29/2006) [2006] ZAFSHC 168 (12 October 2006)

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[2006] ZAFSHC 168
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S v Zondi (29/2006) [2006] ZAFSHC 168 (12 October 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 29/2006
In
the review between:
THE
STATE
and
SIPHO
ZONDI
_____________________________________________________
CORAM:
CILLIé,
J
et
EBRAHIM, J
JUDGMENT:
CILLIé,
J
DELIVERED ON:
12
OCTOBER 2006
This is a special review
in terms of section 304(A) of article 51 of 1977 forwarded by the
magistrate Bloemfontein. The reason for
the submission thereof is
set out in the magistrate’s accompanying letter as follows:
“
The
Honourable Reviewing Judge is humbly requested to set aside the
proceedings on the ground that the proceedings in respect of which
the court brought in a conviction are not in accordance with justice.
The accused was cross examining the first state witness, the
complainant, when the matter was remanded for further trial. On the
next occasion, the state called the second state witness and
the
matter proceeded. Given the time lapse, the court
bona
fide
believed
the cross examination to have been completed and continued with the
proceedings and subsequent handed down its judgment.
After informing
the accused of his rights in mitigation of sentence, the accused
brought the courts attention, that he was not given
the opportunity
to finish his cross examination of the complainant. After listening
to the cassettes (record of proceedings) the
court found that the
accused did indeed not complete his cross-examination of the first
state witness.
It is this courts submission that it
bona fide
erred thus rendering the proceedings irregular and
not in accordance with the justice.”
For the reasons set out
by the magistrate the conviction is set aside. If the state decides
to prosecute the accused again the proceedings
must be before a
different magistrate.
____________
C.B. CILLIé, J
I
agree.
_____________
S.
EBRAHIM, J
/em