R v Fouche

• Jurisdiction: South Africa
• Judge: van Winsen J
• Judgment Date: 24 March 1950
• Hearing Date: 24 March 1950
• Court: Cape Provincial Division

C Van Winsen, J.:

This matter came before me on review. It contravention of sec. 166 (i) of Act 30 of 1928, in that in December, 1950, he was drunk in Orange Street, Ceres. He pleaded guilty. No evidence for the D Crown was led. The accused made a statement, apparently not under oath, and from the record it would appear that the magistrate allowed the accused to be cross-examined by the person appearing for the Crown, and at the end of the hearing the accused was found guilty and sentenced to two months' imprisonment with hard labour, one month of which was E suspended for four months on condition that he was not again found guilty of committing a similar offence. The sentence does not appear from the record to have been signed by the magistrate.

The accused served his sentence, and as recently as 7th March this year F he asked that the matter should be brought before this Court on review because of certain irregularities occurring in the proceedings.

Sec. 98 (4) of Act 32 of 1944 makes provision that in any criminal case in which the sentence is not subject to review in the ordinary course, G if it is brought to the notice of the Court of appeal or any Judge thereof that the proceedings were not in accordance with justice, such Court of appeal or Judge has the same powers as if the case had been laid before it or him on automatic review. Sec. 98 (4) provides no time limit within which the review is to be brought. It appears that in the case of R v Smith and Others, 1937 NPD 223, the Court reviewed the H case notwithstanding the lapse of four years since the conviction. I do not think that because of the lapse of time in this case it is beyond the power of this Court to review the proceedings in the instant case.

There were a number of irregularities committed during the course of the proceedings. Firstly, there is the one to which I have already drawn attention, that the magistrate allowed the accused to be cross-examined even although he gave no evidence under oath. The

Van Winsen J

second irregularity is that no evidence at all was led by the Crown. The magistrate did not purport to act in terms of sec. 286 (1) of the Code, which would have entitled him to dispense with evidence if the offence does not merit punishment of imprisonment with no option of a fine or a A fine in excess of £15. I say he did not purport to act under this section, because he in fact imposed a...