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[2025] ZANCHC 51
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S v Poni (CA&R24/2025) [2025] ZANCHC 51 (6 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Not
Reportable
High
Court Case no
:
CA&R24/2025
Colesberg
Case no: RC 7/2024
In
the matter between:
THE
STATE
and
ABEL
PONI
Accused
Neutral
citation
:
THE STATE
v
ABEL
PONI
(Case no:
CA&R24/2025)
Coram:
Tlaletsi JP &
Mamosebo ADJP
Delivered
:
6 May 2025
RIEVEW
JUDGMENT
Tlaletsi
JP
1.
The accused in this
matter was convicted on a charge of rape by the Regional Court (Mr CJ
Abrahams) on 4 November 2024 in Colesberg.
As part of the
sentencing
proceedings
on 4 November
2024,
a
victim
impact
statement
of
the
complainant
which was facilitated by a court preparation officer was placed
before the court
.
The accused
was legally represented
during the
trial.
2.
In the victim
impact
statement
,
it
was
stated
that the
complainant
mentioned
that
"
I
was terrified
,
I was
terrified because I thought that he was going to kill me
,
and I
was
shocked
because
I do
not know this person.
"
The court
preparation
officer was
called to testify
.
She mentioned
that the complainant spoke to her in Afrikaans and she wrote the
statement in the English language.
Although she
is conversant in Afrikaans
,
she rated
herself
six
out of ten for her proficiency
i
n
Afrikaans
.
3.
The
complainant was recalled, and she confirmed that she knew the
accused
.
This was
consistent with her evidence during the trial
on the merits
.
4.
After the
complainant
concluded her
evidence
,
the
Regional Magistrate stopped the proceedings and referred the matter
to this Court requesting that the conviction be set aside.
The Regional
Magistrate did not refer to a specific legislative provision in terms
of where he is referring the record to this Court
for the convict
i
on
to be set aside.
He however
stated
,
inter alia,
the
following in
the said letter:
-
"
1.
In
light of this material discrepancy,
which
raises serious concerns regarding the reliability of the
complainant's identification
,
I find
it necessary to request that the conviction be reviewed and set
aside
.
I
believe that proceeding with sentencing under these circumstances
would
result in
a
miscarriage
of justice
."
5.
At our request
the Director Public Prosecutions provided his opinion on the review
Magistrate
'
s
request.
We
express our appreciation to Adv SK Weyers-Gericke for their opinion
.
6.
We assume that
the Regional Magistrate intended to send the record for review as
provided in section 304A of the Criminal
Procedure
Act 51 of
1977.
Section
304A of the Act provides that:
"304A
Review of proceedings before sentence
(a)
If
a
magistrate
or
regional magistrate
after
conviction
but
before
sentence
is of the opinion that the proceedings in respect of which he brought
in
a
conviction
are not in accordance with justice
,
or that
doubt exists whether the proceedings are in accordance with justice
,
he
shall
,
without
sentencing the accused, record the reasons for his opinion and
transmit them
,
together
with the record of the proceedings, to the registrar of the
provincial division having jurisdiction,
and
such registrar shall, as soon as is practicable
,
lay the
same for review in chambers before
a
judge, who
shall have the same powers in respect of such proceedings
as
if the
record thereof had been laid before him in terms of section 303
.
(b)
When
a
magistrate
or
a
regional
magistrate acts in terms of paragraph (a)
,
he
shall
inform
the
accused
accordingly
and
postpone
the
case
to
some future
date
pending
the
outcome
of
the
review
proceedings
and
,
if
the
accused is in custody, the magistrate or regional magistrate may make
such order with regard to the detention
or
release of the accused
as he
may deem fit."
7.
It is
perspicuous that the Regional Magistrate carefully analysed the
evidence of the witnesses in his judgment and was satisfied
that the
state has proved beyond a reasonable doubt that the complainant was
indeed raped and that the accused is the person who
raped the
complainant.
His doubt only
arose during the sentencing stage. It is not without significance
that the complainant was recalled and confirmed
that she knew the
accused as she had testified during her testimony on the merits. The
part of the victim impact statement which
came under scrutiny
post-conviction, dealt with an issue which was not in dispute
.
The perceived
contradiction has been explained.
8.
It is a trite
that special review proceedings, especially where criminal
proceedings have not been finalised, should only be utilised
in rare
cases.
(Walhaus
and Others v Additional Magistrate Johannesburg and Another
1959(3)
SA 113 (A);
S
v
Van Eden
2018(2)
SACR 218 (NCK) para 9;
Bagananeng
v The State case number
CA&R33/23
delivered on 27 October 2023, Northern Cape High Court)
Section
304A should be used in deserving cases.
It should not
be invoked merely to eliminate a mere doubt or hesitation on the part
of the trial court.
Neither should
section 304A be utilised to dispose prematurely, cases that might be
dealt with through appeal or review procedure
after the completion of
the trial.
Section 304A
is not there for mere implementation.
It is to be
invoked in deserving cases. (See:
S v
Makhubela
1987(2)
SA 541 (T) at
543F -
5470).
9.
The test for
the High Court to intervene on review before the finalization of the
proceedings
is
whether it
would be unfair and cause irreparable prejudice to an accused to
permit the case to proceed to its conclusion.
(S
v Klaase
1998(1)
SACR 317 (CPA) at
322
d-f).
This is not
such a case that calls for intervention.
It is not the
Magistrate's
opinion that
the proceedings were
not
in accordance
with justice,
or that he doubts that they were not in accordance
with justice.
10.
It remains
open to the accused to approach the High Court after the conclusion
of the proceedings for the review or appeal of the
case on
permissible grounds
.
Piecemeal
adjudication
of the case in
these circumstances will be prejudicial to the accused.
It has the
potential of the High Court providing an opinion on the correctness
or otherwise
of the
conviction
of
the accused without
him being
party to the proceedings as in this case.
11.
In the circumstances
the record should be returned to the trial court for the conclusion
of the proceedings.
We
deliberately refrain from expressing an opinion on the correctness or
otherwise of the conviction.
That should be
considered by the court that would be seized with the appeal or
review
should
the need arise in future.
We caution
that Magistrates should carefully apply their mind to the purpose
of
s
304A
of
the
Act
and
assess
the
nature
and
veracity
of
the
issue creating
doubt on the proceedings before embarking on the procedure therein
provided.
Failure to do
so will result in almost every case being sent to this Court for
review without good cause to do so
.
12.
In the result
,
the following
order is made
:
"The
record
is returned to the trial court for conclusion
of the
proceedings"
L
P TLALETSI
JUDGE
PRESIDENT
I
concur
M
C MAMOSEBO
JUDGE