IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Review case no: 36/24
Ex Hermanus Mag Crt: A2643/23
In the matter of:
THE STATE
v
DONOVAN AFRIKANER
REVIEW JUDGMENT: 19 JUNE 2024
___________________________________________________________________
SHER, J (HENNEY J) concurring:
1. This matter comes before us on automatic review. The accused was
arraigned in the Hermanus magistrate ’s court on 2 charges, each of which
had an alternative. He was convicted on both main counts and sentenced to a
term of 24 months imprisonment in respect of the 1st charge and 6 months
imprisonment in respect of the 2nd, which were ordered to run concurrently.
2. As will be apparent f rom the narrative which ensues, th e process that was
followed in the trial and conviction of the accused can only be described as
extraordinary and highly irregular.
The facts
3. The accused was arrested on 4 September 2023 for allegedly breaching a
‘protection order’ which was granted in favour of his mother on 6 May 2022, in
terms of the Domestic Violence Act (‘the DVA’). 1 Amongst its terms the order
1 Act 116 of 1998.
2
prohibited him from entering her residence in Hawston and from damaging
her property.
4. Following his 1st appearance on 6 September 2023 the matter was remanded
on several occasions for a bail application and legal aid representation.
However, the accused subsequently indicated he no longer sought bail and at
his appearance on 21 November 2023 he informed the magistrate that he
wished to represent himself, at which time the charges were put to him.
5. The 1 st charge was that he had contravened s 17(1)(a) of the DVA by
breaching the protection order on 2 September 2023 , in that he had allegedly
entered the residence of his mother and had broken her kettle and window. In
the alternative thereto he was charged with malicious injury to his mother’s
property. The 2nd charge alleged, in both the main and the alternative count,
that on the same date and at the same place he had assaulted his sister with
intent to cause her grievous bodily harm , by kicking her on her back, hitting
her with his fists, and threatening to kill her.
6. In its formulation the main count of the 2nd charge referred to the provisions of
s 51(2) and Part 3 of Schedule 2 of the Criminal Law Amendment Act (‘the
CLA’)2 read with the provisions of ss 256 and 266 of the Criminal Procedure
Act (‘the CPA’) 3 and s 1 (the definitions section) of the DVA. As far as the
provisions of the CPA are concerned , s 256 provides that if the evidence in
criminal proceedings does not prove the commission of the offence with which
an accused has been charged but merely an attempt to do so, he may be
convicted accordingly, and s 266 provides that if the evidence does not prove
the offence of assault with intent to commit grievous bodily harm but that of
common assault, an accused may be convicted thereof.
7. Section 51(2) and Part 3 of Schedule 2 of the C LA are so-called minimum
sentence provisions. They provide that a person convicted of an offence
which is listed in Part 3 will be liable to a prescribed minimum sentence of not
less than 15, 20 or 25 years imprisonment depending on whether they are 1 st,
2nd or 3 rd time offenders. However, a lthough assault with intent to commit
grievous bodily harm is one of the offences which is listed in Part 3, it only
2 Act 105 of 1997.
3 Act 51 of 1977.
3
attracts a prescribed minimum sentence whe n it is committed on a child wh o
is under the age of 16.
8. In this regard the charge was nonsensical. It alleged that the accused’s sister
was a child under the age of 16 years ‘to wit 17’ (sic) at the time, and that the
age difference between the accused and his sister was more than 4 years.
Given the averment that the accused’s sister was 17 years of age at the time
of the offence, the minimum sentence provisions referred to in Part 3 were
therefore not applicable to him and the charge was not a competent one.
9. As an alternative thereto the accused was charged with common law assault
with intent to do grievous bodily harm, without any reference to any of the
aforesaid statutory provisions.
10. Although the intricacies pertaining to the main count o f the 2nd charge were
not explained to the accused, he was asked to confirm that he understood the
charges as they were presented. In response he s aid that he intended to
plead not guilty in respect of all the charges. However, on being questioned by
the magistrate it was evident that he did not appreciate the distinction
between the various charges, so the magistrate put them to him again ,
without explaining them , at which time the accused indicated that he wished
to plead not guilty to the main count in respect of the 1 st charge, but guilty to
the alternative , and guilty to both the main an d the alternative counts in
respect of the 2nd charge.
11. The magistrate did not ascertain from the prosecutor whether the state w as
prepared to accept the accused’s plea as tendered on any of the charges, and
did not enquire w hether the accused was prepared to submit an explanation
in respect of his plea of not guilty (in terms of s 115 of the CPA) or inform him
that he could be questioned (in terms of s 112(1)(b)) in respect of the charges
to which he had pleaded guilty. Instead of following the well-established
procedures set out in these provisions the magistr ate directed the state to
proceed with evidence in relation to the first charge, whereupon the accused’s
mother was called to the witness stand. The magistrate informed the accused
that after she had given evidence in chief, he would have an opportunity to
ask her any questions that he wanted. He did not inform the accused that,
insofar as he differed from the evidence that was to be led, he had a duty to
contest it, or that he had a duty to put his version.
4
12. The accused’s mother confirmed that she had obtained the protection order
which was referred to in the charge -sheet, against the accused . She was
however not asked to confirm that a copy of it had been served on him or that
he was otherwise aware of it. From the documents that were received by the
court it appears that only a copy of the interim order which was issued on 8
April 2022 was served on the accused, on 19 April 202 2, and there is no
indication that the final order which was granted on 6 May 2022 was served
on him.
13. As to the incidents which gave rise to the charges it was evident, from the
outset of her evidence , that the accused’s mother was at a friend’s house at
the time and did not witness or have personal knowledge of the accused’s
alleged breaches of the protection order. She said she was informed by her
daughter (who came to her whilst she was at her friend’s house) that she had
found the accused in her home, and he had kicked the kettle thereby breaking
it, and had ‘beaten’ her.
14. Although this evidence was clearly hearsay evidence of an incriminating
nature and, as such, should not simply have been admitted unless there was
an indication by the prosecutor that the source thereof i.e. the accused ’s
sister, on whom the probative value of the evidence depende d, would be
called, the magistrate simply allowed it to go in without demur.
15. The accused’s mother said that after her daughter had made a report to her in
relation to the incident the accused had arrived and had started swearing at
her, whereupon the police were summoned. According to the accused ’s
mother the side of her daughter’s face was ‘swollen’ because ‘she was
beaten’. Notwithstanding the possible hearsay or otherwise inadmissible
nature of this evidence insofar as it related to the reason which was given for
her daughter ’s allegedly swollen face, it was not placed in issue and was
simply allowed without a query by the magistrate.
16. As far as the alleged damage to her property was concerned the accused’s
mother said that on her return home a day later, she found that the handle of
the bathroom window was broken, and the accused had put his hand through
the window. When the prosecutor asked her how she knew this she said she
had been told this by her neighbour. Once again, this hearsay evidence was
5
allowed by the magistrate without obtaining any indication from the prosecutor
that the source thereof (the neighbour) would be called to confirm it.
17. At the conclusion of her evidence in chief the magistrate indicated that the
accused could cross-examine her. At the outset the accused attempted to put
to her that she had not been at home at the time of the alleged incident and
when he had seen her at her friend’s house she was under the influence of
alcohol, but the court repeatedly intervened in this line of questioning, which
was then abandoned . The magistrate then allowed the cross -examination to
meander into an attempt , by the accused , to canvass the underlying family
issues between him and his mother rather than to focus on the evidence
which she gave. Although the m agistrate did ask the accused , on more than
one occasion, whether he had any questions in relation to the charges , he did
not inform the accused that he was required to put his case to his mother in
relation to what had occurred between him and his sister. The nearest that the
accused came to dealing with the charges was when he put to his mother that
he did not break the kettle and that his sister had done so when she threw it to
the floor, which he claimed had resulted in his feet be ing burnt, which his
mother was unable to respond to. The accused did indicate that he had
broken the bathroom window and his mother said that she had replaced the
pane and had bought a new kettle, and the accused had given her his bank
card so that she could reimburse herself for these expenses. She had
however not drawn any money from the accused’s account for this.
18. At the conc lusion of her evidence the prosecutor asked for the matter to be
postponed so that she could call a witness who was 17 years of age. In all
likelihood this was an indication that the state intended to call the accused’s
sister. The matter was consequently remanded to 29 November 2023 for
further trial, at which time the prosecutor indicated that she was no longer
intending to call any further witnesses in respect of the 1 st charge and was
closing the state’s case, and requested that the matter be finalised in terms of
s 112(1)(b) of the CPA i.e. that the court should question the accused in order
to determine whether he admitted all the necessary elements of th e charges
to which he had pleaded guilty. On what basis the prosecutor sought to invoke
the provision is not apparent. It is of application at the time when an accused
first pleads guilty to an offence with which they are charged, and the
6
prosecutor accepts the ir plea. It does not find application when a prosecutor
seemingly does not accept a guilty plea and chooses to present evidence to
prove a case against the accused . In such instances the court is required to
determine whether the evidence which is p laced before it by the state,
together with any evidence that may be produced by the accused, justifies a
conviction on the charge(s).
19. The magistrate did not proceed to invoke s 112(1)(b) and inform ed the
accused that he should address the court as to whether, in his ‘opinion’, the
evidence which had been presented on the charge was sufficient to justify a
conviction. Thus, it appears that the magistrate request ed the accused to
address him as to whether the state had made out a sufficient case for him
not to be discharged, in terms of s 174 of the CPA. In doing so the magistrate
did not draw to the accused’s attention that the state’s case was based
entirely on hearsay evidence which had not been corroborated by the source s
thereof. In response the accused indicated that he had no submissions to
make, whereupon the prosecutor submitted that the accused’s mother had
‘testified clearly’ to the offence that the accused had been charged with, and
the accused had not given any ‘rebutting evidence’. Given that the court was
dealing with the issue of whether discharge should be granted at the close of
the state’s case, the statement that the accused had not given any rebutting
evidence was nonsensical. Notwithstanding this and notwithstanding that the
evidence the state sought to rely o n was largely inadmissible as it was
uncorroborated hearsay evidence , and without affording the accused an
opportunity to reply to the state ’s submissions, the magistrate proceeded to
deliver an ex tempore judgment in which he held that, upon a consideration of
the evidence which was presented by the complainant and the ‘evidence’
which had been presented by the accused ‘under oath ’, in which he had
admitted to all the allegations that had been made by h is mother, he was
guilty of breaching the protection order as charged, on the first charge. In this
regard he found that the accused had breached the conditions which were
imposed in the protection order by entering his mother’s residence and
breaking her kettle and window.
20. Bizarrely, d espite the accused having plea ded to all the charges a while
earlier, and despite having found him guilty on the main count in respect of the
7
1st charge, the magistrate then proceeded to ask the accused whether he was
pleading guilty or not guilty on the alternative count thereto, whereupon the
prosecutor again asked the magistrate to apply the provisions of s 112(1)(b).
21. Given that the accused had already been found guilty on the main count of
the 1 st charge this was wholly inappropriate. The magistrate did not
immediately proceed to question the accused in terms of the aforesaid
provision but asked the prosecutor to re -put the alternative count to the
accused (to which he had previously pleaded not guilty) for a 2 nd time and
directed the accused to plead to it again . Once again, the accused entered a
plea of not guilty. The magistrate then proceeded to direct a series of
questions to him in terms of s 112(1)(b) in relation to the alternative count .
During this exchange the accused stated that whilst he was at his mother’s
residence his sister had arr ived and started shouting and swearing at him .
She also allegedly referred to his child, who had been born HIV -positive, in
disparaging terms. The accused said this made him angry and he struck her
with his fist , whereupon she took the kettle and threw it on the floor and ran
out of the house. He followed her to the place where his mother was drinking
with a friend , and an argument ensued between them. The accused then left
and went to live elsewhere for a few days during which time he was attacked
and stabbed by a group of unknown assailants. He was arrested by the police
a few days later, at which time he was also allegedly assaulted by them.
22. After considering what the accused told him the magistrate was not satisfied
that he had properly admitted to all the elements of the charge and he
consequently altered the accused’s plea to one of not guilty and directed the
prosecutor to present evidence in respect thereof, whereupon the prosecutor
proceeded to recall the accused’s mother to give evidence for a 2nd time, even
though, as p reviously pointed out she had no personal, first-hand knowledge
of the events which gave rise to either of the charges and had not witnessed
the accused damaging her property or assaulting his sister. No surprise then
that, w hen she was asked, at the commencement of her second testimony,
what had happened on the day, she said that she had not been at home at the
time and had simply been told certain things by her daughter.
23. At this point the court adjourned for a few minutes. On resumption of
proceedings the prosecutor again pointed out that the accused had already
8
been found guilty on the main c ount of the 1 st charge. Notwithstanding th e
reminder the magistrate allowed the accused’s mother to continue to give
evidence, at which time , instead of eliciting admissible evidence she again
referred to certain hearsay intimations which had been imparted to her by her
daughter and a neighbour. When asked by the magistrate whether she
personally knew anything about the kettle and the window she said that she
had not seen the accused damage or break either of them. How the
magistrate could have asked the accused’s mother this after finding that the
accused had broken the kettle and the window, when convicting him on the
main count, is beyond comprehension. Understandably, given this evidence
the accused had no questions in further cross-examination, whereupon the
state again reminded the magistrate that the accused had already been found
guilty on the main count of the 1st charge and proceeded to close its case, for
a 2nd time.
24. The magistrate then informed the accused (for the 1 st time) that he had the
right to give evidence. The accused elected not to testify. The magistrate then
proceeded to deliver a judgment on the alternative count to the 1 st charge,
notwithstanding that he had already convicted the accused on the main count
thereto, in which he held that the elements of the offence had not been
established and acquitted the accused.
25. Thereafter, the magistrate proceeded to direct the state to present evidence
on the 2 nd charge. Before the prosecutor did so h e directed that the main
count of the 2nd charge be put to the accused again and required him to plead
to it for a 2nd time. After the accused again entered a plea of guilty thereto the
magistrate sought to question him again in terms of s 112(1)(b). In response
the accused largely repeated what he had previously said i.e. that whilst he
was at his mother’s house his sister arrived and they became embroiled in an
argument, as a result of which he struck his sister on her neck. But this time
he added that he had also kicked in her back, whereupon she threw the kettle
at him. He said he knew that it was wrong for him to hit her, but he had not
caused her any injuries.
26. Upon completion of the questioning the magistrate proceeded to deliver yet
another judgment, which was all of a paragraph long, in which he held that he
was satisfied that the accused admitted all the elements of the offence of
9
which had been charged on the main c ount in respect of the 2 nd charge i.e.
assault with intent to commit grievous bodily harm , read with the relevant
statutory provisions previously referred to.
27. From the transcript it appears that the magistrate made no finding or
determination in open court , during the proceedings, in respect of the
alternative count on the 2nd charge. However, it appears from the J15 that he
initially recorded on 29 November 2023 that he had also found the accused
guilty on the alternative count to the 2 nd charge, which he then ‘immediately
corrected’ by drawing a line through it.
28. Upon the conclusion of the proceedings in respect of conviction t he state
proceeded to prove the accused’s previous convictions . These included a
conviction some 10 years ago on a charge of malicious injury to property, and
convictions of breaching a protection order in November 2022 and March
2023, for which the accused received a suspended sentence of 6 months
imprisonment and a sentence of 90 days imprisonment , respectively. After
eliciting the accused’s personal circumstances the magistrate then sentence d
him to 24 months imprisonment on the 1 st charge and 6 months imprisonment
on the second, which were ordered to run concurrently.
An assessment
29. As is evident from what has been set out , several gross and material
irregularities occurred in the arraignment of the accused.
30. Instead of applying the established processes which are provided for in ss 112
and 115 of the CPA, in a holistic, single exercise at the time when the accused
was first called upon to plead , and without even ascertaining from the state
whether it was prepared to accept the accused’s plea to any of the charges,
the magistrate diverted therefrom and directed that the trial take place in a
piecemeal and haphazard fashion.
31. Immediately after the accused pleaded to the charges the magistrate
instructed the state to produce evidence on the 1st charge only. In the process
he allowed the state to elicit incriminat ing evidence against the accused ,
which was inadmissible , in that it was entirely of a hearsay nature and there
was no indication that it would be confirmed by the original sources thereof.
Thereafter, he invited the accused to make submissions pertaining to a
possible discharge on th e 1 st charge even though there was no admissible
10
evidence on which he could properly be convicted, and even though
discharge proceedings only take place at the conclusion of the state’s case in
respect of all the charges which an accused is facing.
32. He then proceeded to convict the accused on the main count of th at charge,
on the basis that his guilt had been proven by the hearsay evidence which
had been given by his mother and the ‘evidence’ which he had given ‘ under
oath’, in which he had supposedly admitted to the elements of the charge ,
when he had in fact not testified and the proceedings were concerned with an
application for discharge.
33. Then, notwithstanding that he had already convicted the accused on the main
count, he proceeded to direct the prosecutor to put up evidence pertaining to
the alternative thereto , and require d the accused to re -plead to it for a 2nd
time, a nd again allowed the witness who had previously testified , to be
recalled and to give evidence on aspects on which she was unable to provide
any direct, admissible evidence. He then proceeded to deliver a 2 nd judgment
(in respect of the same charge) in which he acquitted the accused on the
alternative count thereto before directing the state to present evidence on the
2nd charge and requiring the accused to plead to it again.
34. He then again purported to apply the provisions of s112(1)(b) of the CPA,
before delivering a 3rd judgment, in which he held, in a single paragraph, that
the accused was guilty on the main count of the 2 nd charge, as charged . As
previously pointed out, the main count was defective in that, although in its
formulation it made reference to various provisions of the Criminal Law
Amendment Act of 1997 pertaining to prescribed minimum sentences these
were not applicable as the victim of the alleged assault was not a child under
the age of 16, according to the charge -sheet itself. The accused was never
asked about his sister’s age and no evidence was tendered by the state in this
regard and he could accordingly not be convicted on this count on this basis.
35. Another reason why he could not be found guilty ‘as charged’ on this count is
that he was never asked whether he intended to inflict grievous bodily harm to
his sister during his initial questioning in terms of s112(1)(b) and he made no
admissions to this effect. Likewise, although when he was questioned again
he seemingly admitted to having assaulted his sister by striking her on her
neck and kicking her, after she had provoked him, nothing in the exchange
11
between him and the magistrate indicated that in doing so he ever had any
intention to inflict grievous bodily harm , or to plead guilty to such a charge,
and no admissible, first -hand evidence pertaining to any injuries which his
sister may have sustained was tendered. In fact, the accused claimed that
she had not sustained any injuries at all. A lthough according to the accused’s
mother her daughter’s face was ‘swollen’, the accused claimed he had struck
her in the neck, and whether the alleged swelling of one side of her face was
in fact sustained in the incident was therefore unclear. In the circumstances,
at best the accused could possibly have been convicted of common assault,
as it was a competent verdict.
36. There is a further problem with the trial and conviction of the accused on this
count. As indicated previously, i n terms of s 51(2) (b) of the Criminal Law
Amendment Act, an accused who is convicted of an offence in terms of Part 3
of Schedule 2 of the C LA becomes liable to a prescribed minimum sentence.
But in terms of the section that sentence can only be imposed by a regional
court or a High Court, and a magistrate’s court does not have the jurisdiction
to do so. It seems to me that, in seeking to arraign the accused on a charge
formulated in terms of the section read with Part 3 of Schedule 2, the state
therefore sought to try the accused before a court which did not have the
necessary jurisdiction, as far as the c harge, as formulated, was concerned.
But even if the court did have jurisdiction to try the accused on the charge,
having found him guilty thereof the magistrate did not have the power to
impose an appropriate sentence on him , as required and prescribed by the
section, and was required to refer the matter to the regional court for this
purpose.
37. Then, to compound the irregularity it appears from the J15 that the accused
was also convicted on the alternative count to the 2 nd charge, albeit not in
open court and in his presence , a conviction which was then scrapped or
reversed by the magistrate, as an ‘immediate correction’.
38. A magistrate does not ordinarily have the power to scrap or reverse a
conviction that he/she has wrongly entered against an accused: that is
something only a higher court can do, as he is considered to be functus officio
i.e. to have discharged the powers he has to convict or to acquit, once he has
pronounced on an accused’s guilt.
12
39. It is so that in terms of s 176 of the CPA where ‘by mistake’ a ‘wrong judgment’
is ‘delivered’ in a criminal matter, it may be ‘amended’ immediately after it is
recorded.4 But as is evident from the transcript, the magistrate never formally
pronounced upon the alternative count to the 2 nd charge during the course of
any of the 3 judgments he rendered and it is therefore doubtful whether he
could ‘correct’ the conviction he noted outside of court , in terms of this
provision.
40. In Wells, 5 s 176 was held by the Appellate Division to afford a presiding
officer in a criminal matter the power of explicare et amendare in relation to a
judgment that has been delivered i.e. the power to explain what m ight be
obscure or unclear in the judgment and, in doing so , to correct the wording
thereof where necessary , provided that the substance and tenor of the
judgment is preserved. Thus, this power has commonly been exercised to
correct patent typographical or grammatical errors or word choices or obvious
omissions, or to clarify ‘obscure formulations’.6
41. Recently, in Tuta 7 the Constitutional Court narrowed the ambit of this power
of correction. It pointed out that as an accused is entitled to know the reasons
upon which a court relied to convict him, thes e should accordingly be clearly
and precisely form ulated, so that he/she is able to consider the merits of the
court’s decision, with a view to exercising the right to a possible appeal, if
warranted. Consequently, an accused mu st be able to rely on the reasons
which are given in the judgment, as they reflect the curial pronouncement of
the court’s authority , and these should be made known in open court , in his
presence. As a result, a person who is convicted of an offence should not be
required to suffer ‘ex post reformulations’ (sic) or explanations which the
presiding officer considers, on ref lection, to best express the reasons for
finding as he/she did. The CC held that therefore, whereas revisions in
respect of ‘infelicities of style, grammar, spelling and word choice’ in
judgments that are handed down ex tempore in criminal matters, may be
permitted afterwards, the reasons given by the court in its judgment may not
4 Section 298 of the CPA similarly provides that in instances where a wrong sentence is passed ‘by
mistake’ it may be amended.
5 S v Wells [1990] 2 All SA 1(A) at 820E-F
6 Tuta v S 2024 (1) SACR (CC) para 123.
7 Id para 61.
13
be altered or embellished to give further expression to what the court meant to
convey.
42. On the face of it th e deletion of the finding of guilty on the alternative count to
the 2 nd charge does not appear to amount to a correction of the kind
envisaged in either Wells or Tuta. It was clearly not the correction of a
typographical or grammatical error or unfortunate word choice, or of an
obscure formulation. The only way it could qualify is if one considers it to have
been an attempt to correct a patent error that was made, in noting that the
accused had been found guilty on this count, instead of recording that the
accused was found not guilty, as he had already been found guilty on the
main count . The difficulty that I have with such a construction is that it is
evident from the transcript that the magistrate never formally pronounced on
the alternative count to the 2 nd charge, at any time during the proceedings.
Such a construction may have been tenable it the magistrate had, upon
convicting the accused on the main count to the 2nd charge, or at any time
before sentence, informed the accused that he had found him not guilty on the
alternative. Then it would have been clear that the ‘correction’ which was
made on the J15 was made simply to bring the record in line with the finding
that was made in open court.
43. But, even if one accepts this as an explanation for what happened, the
difficulty I have is that the ‘conviction’ on this charge was deleted or scrapped
by the magistrate, in the absence of the accused. This was contrary to the
provisions of ss 152 and 158 of the CPA which require that , except where
otherwise provided for by the Act, criminal proceedings must take place in
open court and in the presence of the accused. Neither the error in recording
a ‘conviction’ on the alternative count to the 2 nd charge nor the ‘correction’
thereof were disclosed or made known to the accused, in proceedings in open
court. In my view what was done therefore also amounted to an irregularity. In
any event, as is evident, the accused was impermissibly subjected to a
piecemeal process in which he was required to plead repeatedly to charges
he had previously pleaded to, and was subjected more than once to
questioning, purportedly in terms of s 112(1)(b) of the CPA. He was wrongly
convicted on the first charge on the basis that he had testified, when he had
never given evidence at all , and when the evidence which had been tendered
14
was inadmissible evidence that had no value . On the second charge he was
convicted on the main count as charged, when the charge as formulated was
defective and the evidence did not substantiate it.
Conclusion
44. In my view the numerous, egregious irregularities in the process which was
adopted resulted in a trial which was manifestly irregular and unfair, contrary
to the accused’s constitutional rights to a fair trial in terms of s 35 of the
Constitution, and it would constitute an abject failure of justice were t he
convictions to be allowed to stand.
45. This is a most unfortunate state of affairs given the admissions which were
made by the accused during the course of the repeated questioning s to which
he was subjected by the magistrate in relation to both charges, but in my view
the proceedings as a whole were vitiated cumulatively by the irregularities that
have been highlighted. In the interests of the due and proper administration of
justice it is important that the necessary corrective measures be applied , in
order to ensure that criminal proceedings in magistrate’s courts adhere to due
and proper process . In this regard in Thebus 8 the Constitutional Court
pointed out that the concept of a fair trial is not limited to ensuring fairness to
an accused but must also have regard for the interests of society and the
administration of justice.
46. In the result I would make an order setting aside both the convictions and the
sentences imposed. I would also order that a copy of the judgment be sent to
the Chief Magistrate for the district of Hermanus.
8 Thebus v S 2003 (6) SA 505 (CC) para 107.
15
M SHER
Judge of the High Court
(Signature appended digitally)
I agree, and it is so ordered.
R HENNEY
Judge of the High Court