IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Review Case No: HC23/2026
Magistrate's Serial No: 02/2026
Lichtenburg Case No: A22/2026
In the matter between:
THE STATE
and
TSHEPO MOLEFE
CORAM: PETERSEN J, et REDDY J
REVIEW LAID BEFORE REDDY J: 4 August 2026
DELIVERED: 11 August 2026
Summary: Automatic review - The magistrate presided at the accused’s first
appearance, where his previous criminal history was disclosed - She thereafter
convicted and sentenced him - Following S v Twai, Nkuna v S, S v Booysen and S
v S M N , that prior knowledge is a fatal, objective irregularity vitiating the
proceedings, irrespective of a guilty plea - Conviction and sentence set aside.
Accused to be brought before another magistrate.
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________________________________________________________________
REVIEW JUDGMENT
________________________________________________________________
REDDY J:
Introduction
[1] What serves before this Court is a review, as evinced by the provisions of
section 302 of the Criminal Procedure Act 51 of 1977 (the CPA). The accused
electing to conduct his own defence pleaded guilty in the Magistrate's Court, to a
charge of housebreaking with intent to steal and theft. He was convicted on 5 June
2026 and sentenced on 3 July 2026 to 24 months’ direct imprisonment.
[2] On perusal of the review record, a query was directed to the Magistrate on
4 August 2026 in terms of section 304(2)(a) of the CPA. The Magistrate
responded on 7 August 2026 and abides the decision of this court on each point
raised. The query and the response are reproduced for convenience of reference.
The query
[3] The query, dated 4 August 2026, reads:
‘1. These proceedings have been submitted for the purposes of review. Prior to a full
consideration of the review record the Magistrate is requested to comment on the
following as evinced in terms section 304(2)(a) of the Criminal Procedure Act 51 of
1977, (the CPA).
Substantive shortcomings
2. At the first appearance on 16 February 2026, before the same Magistrate who
ultimately convicted and sentenced the accused, the prosecutor disclosed an antecedent
recorded only as “2022 Trespassing”, under a section 60(11B) note. This does not
appear on the SAP 69 and was never proved, admitted, or put to the accused as a
previous conviction at any later stage, including at sentencing.
Sections 271 and 271A
of the Act contemplate that previous convictions are placed before a court only after
conviction, precisely so that a trial officer's assessment of guilt is not influenced by an
accused's previous conviction. In this regard, the Magistrate is referred to S v Twai
(Review) (HC22/2026) [2026] ZANWHC 199 (3 August 2026).
3. The authority cited for the proposition that a guilty plea does not of itself establish
genuine remorse is recorded as “Michelle v S ”. No such case could be located ; the
principle corresponds to S v Matyityi 2011 (1) SACR 40 (SCA) at para 13, and this
appears to be a transcription error. The magistrate is asked to confirm the correct
citation.
Procedural shortcomings
4. The record was not forwarded for review within one week of sentencing, as required
by the certification on the J4 and by section 303 of the Act. Sentence was imposed on
3 July 2026. The Magistrate's certification on the J4 is dated 24 July 2026. The record
was received by this Court on 28 July 2026. The Court Clerk's covering letter of 23 July
2026 attributes the delay to printing difficulties. As the accused has remained in custody
throughout, the Magistrate is asked to comment on the reasons for the delay.
5. The record does not reflect that the period the accused spent in custody awaiting trial
and sentence, from his arrest on 12 February 2026 to sentencing on 3 July 2026, roughly
four months and three weeks, without bail, was considered as a factor relevant t o
sentence. The magistrate is asked to confirm whether it was considered and, if not, to
comment on its bearing on the sentence imposed.
6. In her ex tempore reasons the Magistrate appears to have treated the accused as
having three previous convictions rather than two, referring to matters “in 2019 … in
2018 … and in 2022”. The SAP 69 (Exhibit A) reflects a single date, 2018-10- 22, for
both counts making up the first previous conviction; t he “2019” reference appears to
derive from a typographical error in the correctional supervision report (Exhibit C). The
derive from a typographical error in the correctional supervision report (Exhibit C). The
Magistrate is asked to confirm that sentence was based on two previous convictions
only.
7. It is requested that the Magistrate response be emailed to the Registrar of this Court
on or before 7 August 2026.’
The Magistrate’s response
[4] The magistrate’s response, dated 7 August 2026, reads:
‘I respectfully acknowledge receipt of the query by the Honourable Reviewing Judge
and respond as follows:
Ad paragraph 2
At the accused's first appearance on 16 February 2026, the prosecutor, in purported
compliance with section 60(11B) of the Criminal Procedure Act 51 of 1977, disclosed
that the accused had a “2022 Trespassing” antecedent, no pending matters, had
abandoned bail, was not on parole and that there were no orders against him.
The said antecedent was never proved or admitted as a previous conviction during the
trial or sentencing proceedings, nor did it appear on the SAP 69 placed before the Court
for purposes of sentence.
I acknowledge the concern raised by the Honourable Reviewing Judge regarding the
disclosure of this information before conviction, as well as the principles referred to in
S v Twai (Review). I respectfully abide the decision of the Honourable Reviewing Court
regarding the effect, if any, of this disclosure on the fairness of the proceedings.
Ad paragraph 3
The reference in my ex tempore judgment to “Michelle v S” was incorrect.
The authority I intended to refer to was S v Matyityi 2011 (1) SACR 40 (SCA), where
the Supreme Court of Appeal held that a plea of guilty does not, without more, establish
genuine remorse.
I regret the incorrect citation.
Ad paragraph 4
I acknowledge that the review record was not forwarded within the prescribed period.
Immediately after sentence was imposed on 3 July 2026, the court file was handed to
the Clerk of the Court for preparation of the review record.
According to the information furnished to me by the Clerk of the Court, the
stenographer only submitted the request for transcription of the mechanically
recorded proceedings on 14 July 2026.
During this period I made numerous follow-up enquiries with the Clerk of the Court
regarding the outstanding review record. As the delay persisted, I escalated the
matter to the Court Manager in an effort to expedite the preparation of the record.
Once the transcribed proceedings became available, I requested the Clerk of the
Court to prepare an addendum explaining the administrative delay.
I respectfully submit that I took all reasonable steps within my control to ensure that
the review record was finalised and transmitted as expeditiously as possible. I
nevertheless regret the delay, particularly as the accused remained in custody
throughout.
Ad paragraph 5
The accused remained in custody from his arrest until sentence.
Upon reconsideration of the record, I am unable to state that I expressly considered
the period spent in custody awaiting trial and sentence as a separate mitigating factor
during sentencing. I acknowledge that this constituted a relevant consideration and
respectfully defer to the Honourable Reviewing Court regarding the effect, if any, of
this omission on the sentence imposed.
Ad paragraph 6
I confirm that sentence was imposed on the basis of two previous convictions
reflected on the SAP 69.
The reference during my ex tempore reasons to matters in 2018, 2019 and 2022 was
inadvertent. The reference to 2019 was an error and was not intended to indicate a
separate previous conviction.
I confirm that the accused was sentenced on the basis of the two previous convictions
properly proved before the Court.
Conclusion
I respectfully thank the Honourable Reviewing Judge for the opportunity to
comment on the issues raised.
I regret the errors and omissions identified and respectfully submit these comments
for consideration by the Honourable Reviewing Court. I abide the decision of the
Court.’
Factual background
[5] The accused was arrested on 12 February 2026. At his first appearance on
16 February 2026, before the same magistrate who later convicted and sentenced
him, the prosecutor addressed the court in terms of section 60(11B) of the CPA.
In purported compliance with that provision, he disclosed that the accused had
previous criminal history recorded as “2022 Trespassing”, no pending matters,
had abandoned bail, was not on parole, and that there were no orders against him.
That previous criminal history was never proved or admitted as a previous
conviction, and it does not appear on the SAP 69 placed before the court for
purposes of sentence.
[6] The accused was questioned in terms of section 112(1)(b) of the CPA and
was convicted on 5 June 2026. He was sentenced on 3 July 2026 to 24 months’
direct imprisonment, on the basis of two previous convictions reflected on the
SAP 69. The sentencing court also directed the Department of Correctional
Services to attend to the accused's medical condition.
The law
The disclosure of previous convictions before conviction
[7] The applicable principles were restated by this Division only days before
the query in this matter was raised, in S v Twai
1. It is apposite to restate these
principles in some detail:
1S v Twai (Review) (HC22/2026) [2026] ZANWHC 199 (3 August 2026).
‘[8] It is well established that ss 89, 197, 211 and 271 of the CPA are all directed
against the disclosure of previous convictions at any stage before the conviction of an
accused person. Where a judicial officer acquires knowledge of an accused’s previous
convictions before conviction, and thereafter proceeds to convict the accused, an
irregularity arises which, in the ordinary course, nullifies the proceedings as a whole.
[9] In Nkuna
2, the magistrate’s knowledge of the appellant’s previous convictions was
obtained during a bail application over which the same magistrate presided. That
knowledge, obtained before conviction, was held to constitute an irregularity
nullifying the subsequen t trial notwithstanding that the appellant had pleaded guilty
and that the evidence against him was cogent.
[10] This Division has applied the same principle on materially indistinguishable
facts. In S v S M N
3, the magistrate’s prior knowledge of the accused’s previous
conviction and a pending matter, obtained before conviction, was held to have created
a reasonable apprehension on the part of the accused that the magistrate would not be
impartial. It was not n ecessary to show that the magistrate was in fact biased. The
reasonable apprehension of bias, without more, rendered the proceedings a nullity.
[11] The Eastern Cape Division has engaged the contrary view, sometimes advanced
or postulated, that presiding officers can simply be trusted to disabuse their minds of
prejudicial information obtained at an earlier stage of the same proceedings. In S v
Booysen
4 the court declined to follow S v Thusi and Others and S v Hlati 5, both of
which had held that a magistrate’s prior knowledge of an accused’s previous
convictions, disclosed under s 60(11B), did not vitiate a subsequent conviction unless
actual bias was shown. The court aligned itself instead with S v Bruinders and Nkuna
v S, holding that where a bail application involving formal consideration of the factors
v S, holding that where a bail application involving formal consideration of the factors
in s 60 of the CPA has been heard, the presiding officer will ordinarily be disqualified
from presiding at the accused’s subsequent trial, subject only to narrow exceptions.
[12] The rationale underlying this line of authority is one of principle rather than
outcome. The prejudice lies in the taint to the fairness of the process itself, once a
judicial officer’s mind has been exposed to an accused’s criminal history before guilt
2 Nkuna v S (A62/2012) [2013] ZAGPPHC 111; 2013 (2) SACR 541 (GNP) paras 3 and 10.
3 S v S M N (HC28/2025) [2025] ZANWHC 178 (28 August 2025) paras 8–9.
4 S v Booysen 2016 (1) SACR 521 (ECG) para 25.
5 S v Thusi and Others 2001 (2) SACR 353 (N) and S v Hlati 2000 (2) SACR 325 (N).
has been determined. The enquiry is objective. It does not turn on whether the
presiding officer subjectively recalls or was consciously alive to the disclosure at the
moment of conviction. It turns on whether a reasonable, objective and informed
observer, aware that the disclosure was made to the same officer who thereafter
convicted the accused, would apprehend a risk to impartiality. A guilty plea does not
cure that irregularity, since the concern is not whether the correct result was in fact
reached, but whether justice was seen to be done.’
The disclosure of previous criminal history
[8] Sections 271 and 271A of the CPA envisage that previous convictions are
placed before a court only after conviction, precisely so that a trial officer’s
assessment of guilt is not influenced by an accused’s previous criminal history.
The concern raised in the query was that the disclosure of the accused’s previous
criminal history, recorded as “2022 Trespassing”, to the same magistrate at the
accused’s first appearance, well before conviction, although sanctioned by section
60(11B)(a) of the CPA, was inconsistent with that scheme.
[9] The Magistrate, in her response, acknowledges the concern and
respectfully abides the decision of this Court on the effect, if any, of the disclosure
on the fairness of the proceedings.
[10] Applying the extant principle the review proceedings in the present matter
before this Court, are indistinguishable from Twai. The same Magistrate presided
at the accused's first appearance, where the accused's previous criminal history,
recorded as “2022 Trespassing”, was disclosed, and thereafter accepted his plea,
convicted him, and sentenced him.
[11] The fact that the previous criminal history disclosed here was a single,
undefined item, rather than a list of proved previous convictions, and that it was
never proved or admitted, does not take the matter outside the principle in Twai.
This turns on the fact of prior disclosure to the trial officer and its effect on the
This turns on the fact of prior disclosure to the trial officer and its effect on the
objective appearance of impartiality. Nor is it relevant, for the same reason, that
conviction followed only some three and a half months later, or that the accused
pleaded guilty and was questioned under section 112(1)(b).
[12] The law of this Division must be applied consistently. The disclosure
vitiated the proceedings, and the conviction cannot stand. This is unassailably
dispositive of the review proceedings. In the interest of completeness, some of
the outstanding procedural nuances are addressed.
The citation of authority on genuine remorse
[13] The Magistrate confirms, in her response, that the reference to “Michelle v
S” was a transcription error, and that the authority intended was Matyityi 6. This
point does not impact on the review and requires no further consideration. The
importance of confirming the correctness of a record transmitted on review is,
however, underscored.
The delay in transmission of the record
[14] This Division has previously deprecated this very practice, in materially
indistinguishable circumstances, in S v Du Preez
7, where a review record was laid
before the court more than four months after sentencing, without any explanation
for the delay. In Du Preez the effect of a delay in the transmission of the review
record was underscored as follows:
‘[20] As alluded to supra, the accused was sentenced on 7 June 2023. The review
record was laid before me on 19 October 2023, more than four months after the
accused had been sentenced. The circumstances attributing to the delay are unknown.
No attempt has been made by the Magistr ate to explicate the reasons for the delay.
The record was unaccompanied by an apology. This reflects poorly on the
administrative component of the District Court concerned and on the Magistrate who
to my mind ought to have some oversight on ensuring the timeous dispatch of the
record to the Registrar.
6S v Matyityi 2011 (1) SACR 40 (SCA) at para 13.
7 S v Du Preez (HC 05/2023) [2023] ZANWHC 197 (1 November 2023) paras 20–21.
[21] The review process is an integral component in the attainment of an accused’s
right to a fair trial. Section 303 of the CPA is peremptory and prescribes the timeframe
in which review proceedings must be dispatched to the Registrar of the High Court
having jurisdiction. Matters that fall within the purview of the automatic review
procedure are inherently urgent. The urgency of the automatic review procedure is
inextricably linked, amongst others, to a trial without unreasonable delay, the right to
dignity, freedom and access to the court, and the right to appeal and review. This
practice must be deprecated.’
[15] The delay is regrettable. It is apposite to record that an accused held in
custody is entitled to expect that a review record will be prepared and forwarded
without avoidable delay. It is evident, however, from the Magistrate’s response,
that the delay is attributable to administrative causes beyond her control, and that
she took reasonable steps to expedite the record once the delay became apparent.
This appears to be a chronic systemic occurrence and requires intervention and
judicial oversight at the highest echelons.
The period spent in custody awaiting trial and sentence
[16] The Magistrate confirms, in her response, that she did not expressly
consider this period as a mitigating factor. The Magistrate is cautioned that the
imposition of a suitable sentence requires proper consideration of the triad
8 which
includes the pretrial incarceration9.
The number of previous convictions
[17] The Magistrate confirms, in her response, that sentence was imposed on
the basis of two previous convictions properly reflected on the SAP 69, and that
the reference to 2019 was inadvertent. This consideration has become academic.
8 S v Zinn 1969 (2) SA 537 (A) at 540G.
9 Loyiso Ludidi and Others v S (983/2022; 056/2024) [2024] ZASCA 162; 2025 (1) SACR 225 (SCA) (29
November 2024) paras 12 – 15.
Conclusion
[18] The disclosure of the accused's previous criminal history to the Magistrate
at his first appearance, before he was convicted and sentenced, was a fatal
irregularity analogous with Twai. It vitiated the proceedings. The conviction and
sentence cannot stand and must be set aside. It follows that the findings regarding
several peripheral issues are of no moment given the primary finding on
conviction.
Order
[19] In the premises, the following order is made:
1. The conviction and sentence imposed on the accused are reviewed and
set aside.
2. Pursuant to the conviction and sentence being set aside, the Clerk of the
Court, Lichtenburg, in consultation with the Senior Public Prosecutor, is
directed to take the steps necessary to secure the attendance of the accused
before a magistrate, other than Magistrate C L Wessels, and to report to the
Registrar of this Court when the accused has appeared before court.
3. The judgment must be brought to the attention of the Chief Magistrate.
AREDDY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
I agree.
AH PETERSE N
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG