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THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DMSION, CAPE TOWN)
JUDGMENT
In the matter between:
THE STATE
and
CANDICE DANIELS
AND
In the matter between:
THE STATE
and
NOHESI THEMBA TEMPLERN
1
Reportable
High Court Ref No: 227/26
Review Case No: 6/217/2026
ACCUSED
High Court Ref No: 228/26
Review Case No: 6/230/2026
ACCUSED
Neutral Citation: S v Daniels; S v Templern (Case No. 227/26; and 228/26)
[2026] ZAWCHC .... (4 August 2026)
Coram: Thulare J et YAKE AJ
Delivered: 4 August 2026
Summary: Criminal Procedure - Automatic Review - Magistrate pronouncing
sentence without hearing mitigating and aggravating circumstances - violates
section 35(3)(a) of the Constitution of the Republic of South Africa Act, 1996
and this constitutes a gross irregularity in the proceedings - doctrine of separation
of powers - judiciary must refrain from encroaching upon the terrain reserved for
the executive - sentence reviewed and set aside - both cases remitted back to the
presiding magistrate to conduct sentencing proceedings afresh.
ORDER
1. The conviction in respect of both matters, is confirmed.
2. The sentences in respect of both proceedings are reviewed and set aside.
3. In terms of section 304 (2) (c) (v) of the CPA, the matters are remitted back
to the same presiding magistrate to sentencing proceedings to be conducted
afresh on both cases, with instructions that the presiding magistrate had
regard in compliance with the principles articulated in S v Zinn, the
safeguards of section 302(3)(a) of the CPA, and the constitutional right to
a fair trial.
4. The State is ordered to bring both accused before court within IO days of
receipt of this judgment for purposes of sentence proceedings.
2
5. A copy of this judgment must be brought to the attention of the Chief
Magistrates, Mitchell's Plain.
REVIEW JUDGMENT
YAKE AJ (THULARE J CONCURRING)
Introduction
[ 1 ] Two separate matters were placed before me in chambers for automatic
review. They were transmitted by the Acting Senior Magistrate ("the senior
magistrate") of the Mitchell's Plain Magistrate's Court after it was discovered
that the Acting Magistrate ("the magistrate") had committed certain irregularities
in the proceedings.
[2] Although the precise statutory provision under which these matters were
referred is not expressly stated, it is trite that they fall within the ambit of section
302 of the Criminal Procedure Act ("the CPA"). 1 That section empowers a
reviewing court to consider proceedings of the magistrate's court where a
material irregularity has been committed. This Court's intervention is aimed at
ensuring the validity and fairness of both the conviction and the sentence
[3] The two matters under review are S v Daniels ("the Daniels matter") and S
v Templern ("the Templern matter"). Both were adjudicated upon by the same
magistrate and involve substantially similar charges and issues. For the sake of
brevity, I shall first set out the factual background of each case individually.
Thereafter, I will address the legal issues raised in these matters in a consolidated
1 Section 304(4) of the Criminal Procedure Act 51 of 1977.
3
fashion, as they are materially identical and lend themselves to simultaneous
consideration.
Factual Background
[4] In the Daniels matter, the accused was charged with theft. It was alleged
that on 19 April 2026, at Pick n Pay, Promenade, situated within the district of
Mitchell's Plain, the accused did unlawfully and intentionally steal two Dairy
Milk slabs of 150g each, with a total value of R93.98, being the property, or in
the lawful possession, of Sibulele Fikizolo and/or Pick n Pay Promenade.
[5] In the Templern matter, the accused was charged with theft. It was alleged
that on 24 April 2026, within the district of Mitchell's Plain, the accused did
unlawfully and intentionally steal one bottle ofUzzi perfume, valued at R420.00,
being the property, or in the lawful possession, of Athi Tase and/or Truworths,
Promenade Mall.
[6] On 19 May 2026, the charges of theft were duly put to both accused. Each
tendered a plea of guilty. The magistrate invoked the provisions of section
l 12(1)(b) of the CPA, and after questioning the accused in terms of that section,
returned verdicts of guilty on the respective charges. The accused were
accordingly convicted on the strength of their guilty pleas and sentenced on the
same day.
[7] In the Daniels matter, the accused was sentenced to undergo 24 months'
direct imprisonment, alternatively to pay a fine of R3 000. In the Templern matter,
the accused was sentenced to undergo 36 months' direct imprisonment,
alternatively to pay a fine of R5 000.
4
[8] Following the imposition of sentence, both matters came to the attention
of the senior magistrate, who thereafter transmitted them to this Court for
automatic review. The referral was prompted by the fact that the proceedings
were not digitally recorded, owing to the malfunction of the recording machine,
and that the accused in both matters are presently incarcerated. The referral rests
upon two distinct grounds. First, the plea proceedings were defective in that not
all the essential elements of the offence were canvassed with the accused.
Secondly, the sentencing procedure is marred by material irregularities. The
written record fails to reflect that the accused's previous convictions were
formally proved and admitted; and that the accused's rights prior to sentence were
explained. Both the accused and the prosecutor were afforded an opportunity to
address the court before sentence.
[9] I did not deem it necessary to direct any queries to the magistrate in terms
of section 304(2)(a) of the CPA. The Court has already been apprised that no
digital recordings exist, owing to the malfunction of the recording equipment, and
that the accused in both matters are presently incarcerated.
[10] It is axiomatic that the magistrates' court is a court of record. Section 4(1)
of the Magistrates' Courts Act2 expressly provides that a magistrates' court is a
court of record, thereby imposing upon the presiding officer a duty to ensure that
all proceedings are accurately and comprehensively recorded. Where the
recording equipment malfunctioned, it was incumbent upon the magistrate to
record the proceedings manually. The absence of a proper record constitutes a
deficiency of such gravity that it may amount to a fatal irregularity, with the
consequence that both conviction and sentence are liable to be set aside in their
entirety.
2 ·s ection 4( 1) of the Magistrates' Courts Act 32 of 1944
5
[ 11] This obligation is not a mere administrative formality; it is an essential
safeguard of the constitutional right to a fair trial and underpins the proper
functioning of both the appeal and review processes. Its purpose is to ensure that
an appellate or review court is not left hamstrung in the discharge of its duties by
the absence of court recordings. In light of these facts, I am satisfied that further
enquiry of the magistrate would serve no practical purpose and would not
advance the resolution of the issues before this Court.
[12] In order to determine whether the accused were correctly convicted, it is
incumbent upon this Court to scrutinise the record of proceedings. The enquiry
must be directed at the manner in which the magistrate conducted the questioning
of the accused during the plea stage in each matter. Only by reference to the
verbatim exchanges can it be ascertained whether the magistrate adequately
canvassed the factual substratum so as to establish all the essential elements of
the offences to which the accused purported to plead guilty. The record will
accordingly be quoted in extenso, with particular regard to the nature, scope, and
sufficiency of the questions posed and the answers elicited. This exercise is
indispensable to determine whether the plea was properly taken and whether the
conviction can safely stand.
[ 13] In Daniels matter the questioning and answers by the court in tenns of
section 112( 1 )(b) that led to her conviction reveals the following:
'Court:
Accused:
Court:
Accused:
Court:
Do you plead guilty freely, voluntarily and without undue influence?
Yes.
On what facts do you base your plea of guilty? In other words, why are
you pleading guilty?
Because I stole the items.
Why did you act in the way you did? Why did you do the things you
describe?
6
Accused:
Court:
Accused:
Court:
Accused:
Court:
Accused:
Court:
Accused:
Court:
I was gonna sell the items and buy electricity at home.
What were you going to do with the items mentioned in the charge sheet if
anything?
1 was gonna sell them and buy electricity.
Did you at the time realised that your conduct was wrong and unlawful and
punishable in a court of Law?
Yes
Did you have any excuse or reason to act in the manner you described?
No
According to the charge sheet the value of the item was R93.98. Do you dispute
the value?
No
Do you admit that on 19 April 2026 at Mitchell's Plain in the district of Cape
Town the goods or items in the charge sheet were 2x dairy milk 150g slabs?
Accused: Yes'
[14] The court's questions and answers that led to the conviction of the accused
in Templern matter reveals the following:
'Court:
Accused:
Court:
Accused:
Court:
Accused:
Do you plead guilty freely, voluntarily and without undue influence?
Yes.
On what facts do you base your plea of guilty? In other words, why are
you pleading guilty?
Because I steal and took the item.
Why did you act in the way you did? Why did you do the things you
describe?
So, I steal to clean myself because my girlfriend said I will end up a bergie.
7
Court:
Accused:
Court:
Accused:
Court:
Accused:
Court:
Accused:
Court:
Accused:
Evaluation
What were you going to do with the items mentioned in the charge sheet if
anything?
I was gonna use for myself.
Did you at the time realised that your conduct was wrong and unlawful and
punishable in a court of Law?
Yes
Did you have any excuse or reason to act in the manner you described?
No
According to the charge sheet the value of the item was R420.00. Do you
dispute the value?
No
Do you admit that on 24 April 2026 at Mitchell's Plain in the district of Cape
Town the goods or items in the charge sheet were Uzzi perfume at R420.00?
Yes ... '
[ 15] Before detennining whether the magistrate correctly applied the provisions
of section 112(1)(b) of the CPA and properly convicted the accused, certain broad
observations regarding the section are apposite. The procedure contemplated
therein is designed to ensure that the factual substratum of the plea is adequately
canvassed through questions and answers elicited directly from the accused at the
plea stage. As it was observed in S v Naidoo, 3 that the section was enacted to
shield accused persons from the consequences of an ill-considered plea of guilty.
It ensures that a conviction will not follow unless the factual basis for criminal
liability is properly established through the accused's own admissions. In this
3 S ,. Naidoo 1989 (2) SA 114 (A) at 121 E-G
8
way, the prov1s10n serves both a protective and a corrective function,
safeguarding the fairness of the proceedings and ensuring that criminal liability
rests upon a clear and unequivocal factual foundation.
[ 16] The Full bench of this Division in S v Samuels, 4 dealt with an analogous
situation. I align myself with the sentiments expressed at paragraph 21 of that
judgment where the court emphasised:
"Perhaps it is of paramount importance to mention as well that the purpose of
questioning in terms of s 112 of the CPA is to protect an accused person, who, as in the
instant case, is not only undefended but is clearly uneducated and exhibits no sophistication,
from the adverse consequences of an ill-considered plea of guilty. At the risk of repeating
what I have stated earlier in this judgment, J reiterate that the questioning and answers must
cover all the essential elements of the offence which the state in the absence of a plea of
guilty would be required to prove." (my emphasis)
[17] The application of section 112 (l)(b) must be considered within the
framework of the right to a fair trial enshrined in section 35(3) of the
Constitution5• That right serves as the guiding principle for determining the ambit
and depth of the questions to be posed by the presiding officer6•
[ 18] The judicial enquiry must accordingly be sufficiently probing to safeguard
fairness, particularly where the accused is unrepresented, and to ensure that the
plea rests upon a clear and informed admission of all the essential elements of the
offence which are established through the accused's own words thereby
furnishing a factual basis for each element of the offence. Only when the
admissions are clear, comprehensive, and unequivocal can they properly sustain
4 S v Samuels 2016 (2) SACR 298 (WCC) para 21
5 Section 35(3) of the Constitution of the Republic of South Africa, 1996
6 See Commentmy on the Criminal Procedure Act, Service 54, 17-15.
9
a conviction. Anything less would undennine the protective purpose of section
112(1)(b) and compromise the fairness of the proceedings.
[ 19] Proceedings from that premise, the court must consider whether the
explanation discloses a possible defence in law to the charge which the plea of
guilty has been tendered . Should any doubt arise, the provisions of section 113
must be invoked, and the State will be required to prove its case in the ordinary
course.
[20] I return to the facts of the present case. The senior magistrate has
expressed the view that the magistrate failed to canvass all the elements of the
offence during the plea proceedings. In order to determination whether such
elements were indeed canvassed; it is instructive to first deal with requirements
of the offence. The offence of theft comprises the following constituent
elements: (a) an act of appropriation which includes the unlawful taking or
assumption of control over property; (b) in respect of a certain type of property;
(c) which takes place unlawfully and (d) intentionally.7
[21] For the element of intention to be satisfied, the accused must be aware that
the item appropriated does not belong to him, must recognise that the owner
would not have consented to its removal, and must harbour the resolve to
permanently deprive the owner of such property.
[22] In Riha v S, 8 Mthiyane JA reiterated the elements of theft as follows:
' [ t ]heft, in substance, consists of the unlawful and intentional appropriation of the property of
another (S v Visagie [1990] ZASCA 124; 1991 (1) SA 177 (A) at 1811). The intent to steal
(animus furandi} is present where a person ( 1) intentionally effects an appropriation (2)
intending to deprive the owner permanently of his property or control over his property, (3)
knowing that the property is capable of being stolen, (4) knowing that he is acting unlawfulJy
7 CR Snyman, Criminal Law, Sixth Edition page 476
8 Riba \' S (2009] ZASCA 111; [20 I 0) I All SA 33 I (SCA) para 8
in taking it (Milton South African Criminal Law and Procedure vol II 3rd ed at 616).' (S ,,
Boesak [2000] ZASCA I 12; 2000 (1) SACR 633 (SCA) at para 97.)'
[23] The Appellate Division in R v Sibiya9 held that the accused cannot be
convicted of theft unless he intended to deprive the owner permanently of the
whole benefit of his ownership.
[23] In Daniels matter, the question posed to her by the magistrate was, "on
what facts to you base your plea of guilty? In other words, why are you pleading
guilty?" Her response was that "because I stole the items". Similarly, with
Templern matter, the same questioned of what facts did he based his plea of guilty
was posed to the accused. His response was, "because I steal and took the item".
[24] Notably, in both matters the magistrate failed to invite the accused to
narrate the circumstances leading to their admissions of theft, nor did he probe
the precise meaning they ascribed to the assertion that they had "stolen" the items.
Instead, he appears to have subjective assumption that the accused must
necessarily comprehend the legal import of the term "steal". Such an approach
is problematic, for it presupposes knowledge of the juridical elements of theft
without eliciting from the accused a factual narrative that demonstrates their
appreciation of the conduct constituting the offence.
[25] The judicial officer is not entitled to presume that an unrepresented accused
appreciates the juridical content of legal terminology. Rather, the court must
ensure that the accused's admissions are grounded in a factual exposition
demonstrating awareness of the conduct constituting the offence. The failure to
interrogate the accused's understanding of their admissions undermines the
safeguards contemplated in section 112(1) (b) of the CPA, which requires the
court to ensure that the plea of guilty is both informed and unequivocal.
9 R v Sibiya 1955 (4) SA 247 (A) 246
11
[26] On this score, it bears mentioning that in determining whether the
accused's answers in response to the magistrate's questions are adequate for
purposes of section l 12(l)(b), the magistrate is not required to evaluate such
answers as if it were weighing evidence to decide on the guilt or innocence of the
accused. Rather, its task is simply to interpret them "to see whether they
substantiate the guilty plea". As Didcott J aptly put it in S v Mkhize10 "The test,
in short, is what the accused person said, not what the court thinks of it."
[27] Although the magistrate did not obtain a narrative account from the
accused detailing the manner in which the offence was committed, the
questioning and answers nonetheless yielded material admissions. In particular,
the accused in Daniels matter expressly acknowledged that she stole the
chocolates belonging to Pick n Pay, with the specific purpose of selling them.
Her responses unequivocally confirm that she appreciated her conduct to be
wrongful, unlawful, and punishable by a court of law. Had she not recognised
the wrongfulness and unlawfulness of her conduct, such admissions would not
have been forthcoming. The admissions accordingly, suffice to establish the
essential elements of theft, namely appropriation, unlawfulness, and the
intention to permanently deprive the lawful owner.
[28] Similarly, in the case of Templern, the accused admitted to stealing the
perfume which did not belong to him, with the intention of permanently depriving
Truworths of its property, as he indicated that he intended to use the item for
himself. His admissions further demonstrate that he was fully cognisant that his
conduct was unlawful and punishable by a court of law. These concessions
adequately traverse the essential elements of theft, namely appropriation,
unlawfulness, and the requisite intent to permanently deprive the lawful owner.
10 S v Mkhize 1978 (I) SA 264 (NPD) At 268 A-B.
12
[29] In light of the admissions made by both accused, and notwithstanding the
shortcomings evident in the questioning conducted by the magistrate, I am
satisfied that each accused admitted all the essential elements of the offence. The
magistrate accordingly acted correctly in convicting them. The record reflects that
the factual basis for the pleas was adequately established, and the convictions are
in accordance with justice. The magistrate's approach was consistent with the
requirements of section 112(1)(b) of the CPA, and the resultant convictions
cannot be faulted.
The Sentence
[30] The procedure and powers of a review court are set out in section 304(2)(c)
of the CPA. In relation to sentence, section 304(2)(c)(ii) empowers a review court
to confirm, reduce, alter, or set aside the sentence or any order imposed by the
magistrate's court. Further, section 304(2)(c)(v) provides that a review court is
empowered to remit the case to the magistrate's court with appropriate
instructions (my emphasis). The provision expressly authorises the review court
to direct the magistrate's court to deal with any matter in such manner as the
provincial or local division may deem fit. These provisions underscore the wide
remedial powers vested in a review court to ensure that justice is achieved and
that irregularities in sentencing or orders are appropriately corrected.
[31] In both matters, the magistrate imposed sentences of direct imprisonment
coupled with an option of a fine. Upon perusal of the record, the proceedings of
19 May 2026 in relation to the Daniels reflect that the accused was present in
court, and the following was recorded:
'PP - request the court to proceed with the plea and that the accused has
19 previous convictions; 17 of theft and two of assault and drugs.
13
Court - sentenced to 24 months direct imprisonment or R3000, 00 fine.
Accused remains in custody until sentence is complied with in full.'
[32] Similarly, in Templern matter, the record of proceedings on 19 May
2026 reflects that the accused was present in court, and the following was
recorded:
'PP - request the court to proceed with the plea in terms of section
112(l)(b) of the CPA and that the accused has 26 previous convictions of
theft. Latest was October 2020.
Court - sentenced to 36 months direct imprisonment or R5000, 00 fine
because there is no element of stopping theft but propensity for theft.
Accused is in in custody and will only be released if he complied with the
sentence in full.'
[33] It is prudent that, before embarking upon the sentencing stage, the
prosecution be afforded an opportunity to prove previous convictions of the
accused, if any. In tum, the accused must be given a fair opportunity either to
admit or to deny the existence of such convictions. This procedure is integral to
ensuring that sentencing is informed by a complete and accurate record, and that
the accused's rights are safeguarded.
[34] In the present matters, notwithstanding that the presiding magistrate was
informed that both accused had previous convictions, the record is silent as to
whether those convictions were formally proved or admitted. In the Daniels
matter, save for the prosecutor informing the magistrate that the accused had 19
previous convictions, the record is devoid of any indication that such convictions
were formally proved or that the accused admitted them.
[35] Similarly, in the Templern matter, the record merely reflects that the
prosecutor advised the presiding magistrate that the accused had 26 previous
14
convictions, the most recent being in October. Again, there is no indication that
these convictions were proved or admitted in accordance with proper procedure.
[36] I am inclined to conclude that the prior convictions were the decisive factor
that persuaded the presiding magistrate to impose the sentences ultimately handed
down, particularly when viewed against the relatively minor nature of the
offences committed. If this inclination is correct, then it was unfortunately
premised on a fundamental error. In the absence of proof or admission of the
previous convictions, the magistrate was not entitled to rely upon them in
determining sentence. To do so constitutes a material irregularity, as it
undermines both the fairness and the transparency of the sentencing process. The
reliance on unproven convictions compromises the integrity of the proceedings
and renders the sentences imposed susceptible to being set aside on review.
[37] Not only does the record omit any reference to the proof or admission of
the accused's previous convictions, but in both matters the record fails to reflect
the sentencing proceedings themselves. There is no indication that the accused
were afforded an opportunity to present mitigating factors, nor that the
prosecution was invited to advance aggravating considerations. These omissions
are fundamental. The principles of sentencing, commonly referred to as the triad
in the well-known matter of S v Zinn, 11 require that the court balance (a) the nature
and seriousness of the offence, (b) the interests of society, and (c) the personal
circumstances of the offender. The magistrate was obliged to consider these
factors before imposing sentence. This was plainly not done in the present
matters. To sentence an accused without first hearing evidence or submissions in
mitigation and aggravation constitutes a gross irregularity. Such conduct
11 S v Zinn 1969 (2) SA 537 (A).
15
infringes upon the accused's constitutional right to a fair trial as enshrined in
section 35(3) of the Constitution.12
[38] In S v Calitz en 'n Ander, 13 the appellants p]eaded guilty in the magistrate's
court. The magistrate imposed sentence but his reasons for sentence did not
appear from the record. In response to the notice of appeal, the magistrate
requested that his 'ex tempore judgment' be regarded as reasons for the purposes
of appeal. It was held, inter alia ''that it had to be emphasised that the proper
protection, on the one hand, of the appellant's constitutional right to an appeal
and, on the other hand, the community's interests that offenders be properly
punished, required of a judicial officer that thorough attention be paid to the
formulation and fi,mishing of reasons for sentence. Without it sound criminal
justice was hampered." (my emphasis) In the context of the present matter, the
failure of the trial magistrate to furnish reasons for both the convictions and
sentences, falls squarely within this admonition.
[39] In S v Zwane, 14 Msimang J, (as he then was), in considering the origin and
purpose of the provisions of sec 302(3)(a) of the CPA which governs sentences
imposed upon an accused who was not assisted by a legal adviser, succinctly
observed:
' In the ensuing legislation the sentiment expressed in the said passage was enacted into law in
the form of the provisions of s 302(3)(a) of the Criminal Procedure Act, thus removing the
system of automatic review from the benefit of the State and making it available solely for the
benefit of the convicted person who had been unrepresented <luting his trial. It must accordingly
follow that where, in terms of the provisions of s 304(1) of the Criminal Procedure Act, it must
appear to a reviewing Judge "that the proceedings are in accordance with justice", what is
meant is that those proceedings must be in accordance with real and substantial justice insofar
as the interests of that convicted person are concerned. In my view, therefore, the system must
12 Section 35(3) of the Constitution of the Republic of South Africa, 1996.
13 S v Calitz en 'n Ander13 2003 (!) SACR 116 (SCA).
14 S v Zwane 2004 (2) SACR 291 (N) at 294C-G
16
always be utilised in favour of those interests. In S v Madonda 1979 (3) SA 795 (Tk) the
automatic review in the ordinary course was being sought in the proceedings in which the
accused had been wrongly acquitted. In declining to exercise such jurisdiction the Court made
the fo11owing remarks: "The purpose of review in the ordinary course is to afford a safeguard
against unjust convictions or sentences. It serves to protect accused persons from injustice due
to errors or irregularities which may occur in the trial of the more serious cases heard by the
lower courts. It was not intended that this court should on review correct mistakes which may
occur in the lower courts, but which do not result in the conviction or sentence of the accused,
nor is this court disposed to embark upon such a task which is not authorised by the Act.'"
[40] The dictum in Calitz and Zwane underscores that review proceedings are
designed to safeguard accused persons against unjust convictions or sentences,
particularly where they are unrepresented. In both matters, not only were the
sentencing proceedings irregular, but I further note that on the front of the Jl5,
the magistrate failed to endorse the sentences in either case. This omission
compounds the irregularities already identified. The protective rationale of
section 302(3)(a) of the CPA is precisely to ensure that sentences imposed upon
unrepresented accused are subjected to automatic review, thereby safeguarding
their constitutional right to a fair trial. The absence of endorsement on the Jl5,
coupled with the failure to properly record sentencing proceedings, undermines
the integrity of the process and reinforces the necessity of review intervention.
[ 41] I further observe that, in both matters, the magistrate directed that the
accused remain in custody until such time as the sentence imposed has been fully
complied with. Although not expressly articulated in the record, it appears that
complied with. Although not expressly articulated in the record, it appears that
the magistrate sought to invoke the provisions of section 276B (1) of the CPA.
[42] Section 276B (1) of the CPA empowers the court to impose a non-parole
period. It stipulates that:
(a) If a court sentences a person convicted of an offence to imprisonment for a period
of two years or longer, the court may as part of the sentence, fix a period during which
17
the person shall not be placed on parole.
(b) Such period shall be referred to as the non-parole-period, and may not exceed two
thirds of the tenn of imprisonment imposed or 25 years, whichever is the shorter.
[43] The section 276B non-parole order has been described as "an order which
constitutes a detennination in the present regarding the future conduct of the
person affected thereby, directing that such person does not deserve release on
parole in the future."15 Such an order ought properly to be made only in
exceptional circumstances, which must be established through investigation of
salient facts, the presentation of legal argument, and, where necessary, the
tendering of further evidence upon which the decision for non-parole rests. In
determining a non-parole period following the imposition of punishment, the
court is, in effect, required to make a prediction on what may well be inadequate
information concerning the probable future behaviour of the accused.
Accordingly, a need for circumspection arises, for a proper evidential foundation
is indispensable before such an order may justifiably be made.16
[ 44] It is trite that the statute does not provide for any circumstance in which a
court may order that an accused is not entitled to parole. Section 276B of the CPA
authorises only the fixing of a non-parole period and does not empower the
judiciary to extinguish parole eligibility altogether.
[45] It must be borne in mind that the determination of parole remains a matter
falling squarely within the competence of the executive correctional authorities,
subject to the applicable statutory regulation. Once a sentence has been imposed,
the administration and execution thereof; including matters such as parole or
remission; fall exclusively within the competence of the executive authorities.
Courts are accordingly enjoined to respect this constitutional demarcation, lest
they transgress into functions that the Constitution has deliberately entrusted to
they transgress into functions that the Constitution has deliberately entrusted to
15 St,ydom v S [2015) ZASCA 29 at para 16
16 S ,. Slander [201 1) ZASCA 211; 2012 (1) SACR 537 (SCA) para 20
18
another branch of government. This guiding principle of authority accords with
the doctrine of separation of powers and ensures that each branch of government
operates within its constitutionally assigned sphere. In S v Stander, 17 the court
held that:
'Despite the fact that s 276B grants courts the power to venture onto the terrain
traditionally reserved for the executive, it remains generally desirable for a court not to
exercise that power. ... Ultimately, the case-management committee submits a report
on each prisoner to the relevant Correctional Supervision and Parole Board. The report
deals with the conduct, disciplinary record, adaptation, training, aptitude, industry ,
physical and mental state of the prisoner and the likelihood of his or her relapse into
crime. In order to fulfil these functions the Department employs suitably skilled people .
The Correctional Supervision and Parole Board considers the report submitted to it and
also takes into account the views of the complainant in certain identified instances of
serious crime. Such a complainant has the right in tenns of s 299A of the Act to attend
the meeting of the Correctional Supervision and Parole Board and make representations
when the parole of the perpetrator is considered. This serves to illustrate that the
consideration of the suitability of a prisoner to be released on parole requires the
assessment of facts relevant to the conduct of the prisoner after the imposition of
sentence. This short summary of the statutory procedure prescribed for the
consideration of a prisoner' s release on parole illustrates why the Department, and not
a sentencing court, is far better suited to make decisions about the release of a prisoner
on parole and why it remains desirable to respect the principle of the separation of
powers in this regard.'
[46] Accordingly, a court which imposes a sentence with the express provision
that the prisoner shall undergo a specified period of direct imprisonment and is
that the prisoner shall undergo a specified period of direct imprisonment and is
not entitled to remission or parole acts arbitrarily and in flagrant disregard of the
constitutional rights to freedom of the prisoner, as such an order contravenes
section 12 of the Constitution. Such an order also constitutes a violation of the
17 Sr Stamler 17 20 12 (I) SACR 537 (SC A) at para 12 and 13
19
doctrine of separation of powers, the central objective of which is to secure a
system of checks and balances.
[47] It is therefore imperative that, where a magistrate seeks to invoke the
provisions of section 276B of the CPA, the court must determine whether
exceptional circumstances exist and must articulate those circumstances with
clarity in its judgment, so as to avoid encroachment upon the executive terrain.
Absent such articulation, as is evident in the present matters, the order amounts
to a usurpation of the executive function, which properly resides in the
Department of Correctional Services, the entity vested by the legislature with the
authority to regulate and determine the dynamics of parole. In my view, the
magistrate ought not to have conditioned the sentence by directing that the
accused were not to be released until they had fully complied with the sentence
imposed.
[ 48] I note with concern that the date of appointment of the presiding magistrate
was 4 May 2026, scarcely two weeks before these two cases came before him.
This is disturbing, as the record reveals that the magistrate lacked even the most
basic knowledge of how to properly conduct criminal proceedings. It is prudent
that whenever a new magistrate is appointed- particularly an acting magistrate,
who is not ordinarily afforded the benefit of formal training prior to assuming
judicial office; such magistrates should receive proper inhouse training, guidance,
and mentoring. The glaring errors committed in these two cases point not merely
to inexperience but to a lack of adequate guidance and oversight.
[ 49] The irregularities evident in the present matters underscore the pressing
need for systemic intervention in the appointment and oversight of newly
appointed acting magistrates. It is imperative that the judiciary ensures that such
appointees are adequately prepared to discharge their duties in accordance with
constitutional and statutory requirements. It is my view that a structured
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programme should be developed to assist the newly appointed acting magistrates
which encompassing both formal induction training and ongoing mentorship as
follows:
[50] Firstly, structured induction training should be mandatory for all newly
appointed acting magistrates. Such training must be practical, case-based, and
tailored to equip acting magistrates with the skills necessary to avoid fundamental
irregularities. Secondly, a system of mentorship and guidance should be
instituted, whereby experienced senior magistrates provide ongoing support and
supervision to new appointees. This will ensure that errors arising from
inexperience are identified and corrected at an early stage.
[51] Thirdly, continuous monitoring and evaluation of newly appointed acting
magistrates should be regarded as a priority. Regular review of their court
records, judgments and sentencing practices will serve both as a safeguard against
irregularities and as a mechanism for professional development. And,finally, the
judiciary should adopt a policy of progressive oversight, ensuring that acting
magistrates, who may not have had the benefit of formal judicial training prior to
appointment, are subject to closer scrutiny and support until they demonstrate
competence and consistency in their judicial functions.
[ 52] These measures are essential to safeguard and uphold the integrity of the
judicial process, to prevent irregularities of the kind encountered here. This will
ensure that the constitutional rights of accused persons are not compromised by
avoidable procedural missteps. In the end, public confidence in the administration
of justice will be maintained.
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Conclusion
[53] Upon consideration of the records transmitted for review, it is evident that
the proceedings in both matters were marred by material irregularities. The
central defect lies in the magistrate's failure to adhere to the established
sentencing procedure. After conviction, the magistrate proceeded directly to the
imposition of sentence without affording either the accused and the prosecution
an opportunity to lead evidence or make submissions in respect of mitigating and
aggravating circumstances.
[54] This omission constitutes a violation of the accused persons' constitutional
rights under section 35(3)(a) of the Constitution, which guarantees the right to a
fair trial. This right to a fair trial necessarily encompasses the right to be heard
before sentence is passed, particularly on issues that may materially affect the
nature and severity of the punishment imposed.
[55] The magistrate's conduct further contravenes the procedural safeguards
entrenched in the CPA, which prescribes that sentencing must follow a balanced
consideration of all relevant factors, including the personal circumstances of the
accused, the interests of society, and the gravity of the offence. By failing to invite
submissions on these aspects, the magistrate deprived the proceedings of the
fairness and transparency required by law.
[ 56] Accordingly, the irregularities identified are not merely technical but
amount to gross irregularities that vitiate the sentencing process in both matters.
The sentences imposed therefore cannot stand and fall to be reviewed and set
aside under section 304(4) of the CPA.
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[57] However, I am mindful of the guidance of the Supreme Court of Appeal
in S v Mshengu18, where the court observed that section 312 should not be
invoked if compliance with the section would be unfair. To this end, I find the
following except from that judgment apposite. The court stated:
'The purpose of s 312 is to prevent an injustice which may occur if an accused person were to
escape punishment for his or her crime only because bis or her conviction was set aside on the
ground that there was a failure to comply with s 112 of the Act. But an injustice cannot occur
where the accused has served the entire sentence by the time the conviction is set aside on
appeal. Nor can it occur where a fresh conviction cannot be achieved following a remittal to
the trial court .... There can be no justification for ordering that an accused person, who has
already served the entire punishment, be subjected to a second trial. Such an order would be
inconsistent with the right to a fair trial. In my view it could never have been the intention
of the legislature that a court is obliged to comply with the section irrespective of the injustice
or unfairness that it may cause.' (my emphasis)
[58] Notwithstanding that the offences may have been of a relatively minor
nature, the accused were correctly convicted. It must be emphasised that it would
constitute a failure of justice if both accused were to escape liability merely on
the basis of technical irregularities. The jurisprudence is clear that review
proceedings are intended to safeguard against unjust convictions or sentences, not
to permit offenders to evade accountability through procedural lapses.
[59] The circumstances of these cases demonstrate that the accused would not
suffer prejudice if the matters were remitted to the magistrate's court for
sentencing proceedings to properly commence. On the contrary,justice would be
advanced by ensuring that the sentencing process is conducted in accordance with
advanced by ensuring that the sentencing process is conducted in accordance with
constitutional and statutory requirements, thereby vindicating both the rights of
the accused and the interests of society.
18 S \' Mshengu 2009 (2) SACR 216 (SCA) para 17
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[60] In view of these considerations, the sentence of the accused in both cases
were in not accordance with justice. Accordingly, the appropriate course is to
remit the matters to the trial court in terms of section 304 of the CPA, with
instructions that sentencing proceedings be conducted afresh, in compliance with
the principles articulated in S v Zinn, the safeguards of section 302(3)(a) of the
CPA, and the constitutional right to a fair trial.
Order
[ 61] In the result, the following order is made:
(a) The conviction in respect of both matters, is confirmed.
(b) The sentences in respect of both proceedings are reviewed and set
aside.
(c) In terms of section 304 (2) (c) (v) of the CPA, the matters are
remitted back to the same presiding magistrate to sentencing
proceedings to be conducted afresh on both cases, with instructions
that the presiding magistrate had regard in compliance with the
principles articulated in S v Zinn, the safeguards of section 302(3)(a)
of the CPA, and the constitutional right to a fair trial.
( d) The State is ordered to bring both accused before court within 1 days
of receipt of this judgment for purposes of sentence proceedings.
( e) A copy of this judgment must be brought to the attention of the Chief
Magistrates, Mitchell's Plain.
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S. YAKE
ACTING JUDGE OF THE IDGH COURT
I agree and it is so ordered.
D. THULARE
JUDGE OF THE IDGH COURT
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