Moetjie v the State and Another

• Jurisdiction: South Africa
• Citation: 2009 (1) SACR 95 (T)

Moetjie v The State and Another
2009 (1) SACR 95 (T)

2009 (1) SACR p95

Citation	2009 (1) SACR 95 (T)
Case No	A1143/07
Court	Transvaal Provincial Division
Judge	Van Der Merwe J and Southwood J
Heard	January 7, 2008
Judgment	January 7, 2008
Counsel	Special review. The issues appear from the judgment of Southwood J, in which Van der Merwe J concurred

Flynote : Sleutelwoorde

Fundamental rights — Right to a fair trial — Section 35(3) of Constitution of the I Republic of South Africa, 1996 — Where fair trial right infringed or threatened, accused having right to approach court — Court not to be prevented by ordinary rules from considering matter — In casu, relevant parties having received application and having had opportunity to comment on relief sought — Accordingly, even if wrong procedure adopted, no prejudice caused if court proceeding to consider matter. J

2009 (1) SACR p96

A Sentence — Imprisonment — Imprisonment for indefinite period following declaration as dangerous criminal — Section 286B of Criminal Procedure Act 51 of 1977 — Reconsideration of sentence after expiration of stipulated period — Proceedings under s 286B part of accused's trial — Fair trial provisions of s 35(3) of Constitution of the Republic of South Africa, 1996, therefore applicable — Unrepresented accused with limited education not being advised to obtain legal representation — Not B being advised of what was required of him at hearing — Accused not having access to documents on which magistrate basing findings — Accordingly, proceedings unfair and magistrate's order to be set aside.

Sentence — Imprisonment — Term of — Imprisonment for indefinite period C following declaration as dangerous criminal — Section 286B of Criminal Procedure Act 51 of 1977 — Reconsideration of sentence after expiration of stipulated period — Magistrate failing properly to consider new evidence contained in reports compiled by Department of Correctional Services — Provisions of s 286B(2) not adhered to — Magistrate having no access to recorded evidence and relying solely on contents of police dossier — D Magistrate failing to obtain and consider report of parole board, as required by s 286B(4)(a) — Fatal flaws requiring order to be set aside.

Headnote : Kopnota

In 1995 the accused had been declared a dangerous criminal and sentenced to an indefinite period of imprisonment in terms of s 286B(1) of the Criminal Procedure Act 51 of 1977. It was ordered, further, that he be brought before E the court after the expiration of ten years for reconsideration of sentence in terms of s 286B(4). In September 2006, some 15 months after the expiration of the ten-year period, the accused appeared before a different magistrate of the same court, the original sentencing magistrate being no longer available. He was not legally represented and was not advised of his right to representation; neither was he given access to various reports F submitted to the court by the Department of Correctional Services. In addition, the record of the original proceedings could not be found. The magistrate summarised the salient facts after referring to the police dossier and, having had regard to the accused's list of previous convictions, concluded that he could not be released from prison. The accused subsequently applied to the High Court, on notice of motion supported by G an affidavit by his attorney, for a special review and the setting-aside of the order confirming his continued imprisonment. Before turning to the substance of the application the court considered the respondents' objection to the procedure adopted by the accused.

Held, that the matter concerned the right to a fair trial, and where this right had been infringed or threatened an accused had the right to approach a court H in terms of s 38 of the Constitution of the Republic of South Africa, 1996. Where this occurred a court would not be prevented by the ordinary rules from considering the matter. In casu, the relevant parties had received the application and had had an opportunity to comment on the relief sought. Accordingly, even if the wrong procedure had been adopted no prejudice could be caused to the administration of justice if the court proceeded to I consider the application. (Paragraph [4] at 98h-99a.)

Held, further, that the proceedings in terms of s 286B were part of the accused's trial, and s 35(3) of the Constitution was therefore applicable. As an unrepresented accused with limited education and insight into the proceedings, he should have been advised to obtain legal representation or, at the very least, advised of what was required of him at the hearing. Instead, J the magistrate had not explained the accused's rights or the purpose of the

2009 (1) SACR p97

proceedings and neither had the accused had access to the documents on A which the magistrate had based his finding. Under these circumstances, the proceedings had not been fair and the magistrate's order was to be set aside. (Paragraph [8] at 101g-102b.)

Held, further, that, despite the fact that the new evidence contained in the reports compiled by the Department of Correctional Services was of vital importance in the enquiry, there was no indication that the same had been B carefully considered or analysed by the magistrate. In addition, the provisions of s 286B(2), which required 'a consideration of the evidence recorded', had not been adhered to. The magistrate had not had access to the recorded evidence or even to the reasons for sentence, and had relied solely on the contents of the police dossier. The subsection clearly envisaged that the judicial officer who reconsidered the sentence should be placed as C far as possible in the position of the officer who had convicted the accused, but this had not happened. Furthermore, the magistrate's failure to obtain and consider the report of a parole board, as required by s 286B(4)(a), was a fatal flaw in the proceedings which required the order to be set aside. (Paragraphs [7] and [9] - [10] at 101f-g and 102b-i.)

Application granted. Matter remitted to the regional court for reconsideration of D the accused's sentence in terms of s 286B by a different magistrate.

Annotations:

Cases cited

Reported cases

Fose v Minister of Safety and Security1997 (3) SA 786 (CC) (1997 (7) E BCLR 851): referred to

Gerber v Voorsitter: Komitee oor Amnestie van die Kommissie vir Waarheid en Versoening1998 (2) SA 559 (T): referred to

S v Bull and Another; S v Chavulla and Others2001 (2) SACR 681 (SCA) (2002 (1) SA 535; 2002 (6) BCLR 551): dictum in para [27] applied F

S v Ntuli1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141): referred to

S v Radebe; S v Mbonani1988 (1) SA 191 (T): referred to

S v Raphatle1995 (2) SACR 452 (T): referred to

S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another1989 (3) SA 368 (E): referred to G

S v T1997 (1) SACR 496 (SCA): referred to

S v Van Rooyen and Others2001 (2) SACR 376 (T) (2001 (4) SA 396): referred to

S v Zulu1990 (1) SA 655 (T): referred to

S v Zuma and Others1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to H

Van Rooyen en Andere v Departement van Korrektiewe Dienste en 'n Ander: In Re S v Du Toit en Andere2005 (1) SACR 77 (T): referred to.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, ss 35(3) and 38: see Juta's Statutes of South Africa 2007/8 vol 5 at 1-26 and 1-27 I

The Criminal Procedure Act 51 of 1977, s 286B: see Juta's Statutes of South Africa 2007/8 vol 1 at 1-390.

Case Information

Special review. The issues appear from the judgment of Southwood J, in which Van der Merwe J concurred. J

2009 (1) SACR p98

Judgment

Southwood J:

[1] A This is an application for a special review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977 (the Act). The accused seeks an order setting aside the order made on 13 September 2006 by the Polokwane regional court in terms of s...