S v Makhubele

• Jurisdiction: South Africa
• Judgment Date: 09 July 1986
• Citation: 1987 (2) SA 541 (T)

S v Makhubele
1987 (2) SA 541 (T)

1987 (2) SA p541

Citation	1987 (2) SA 541 (T)
Court	Transvaal Provincial Division
Judge	Kriegler J en Van Der Merwe J
Heard	July 9, 1986
Judgment	July 9, 1986

Flynote : Sleutelwoorde

Criminal procedure — Review — Automatic review — In what cases — Sentence not yet imposed — Section 304A of Act 51 of 1977 should not be applied so sparingly as to be dead letter — Only to be applied in rare cases where continuation of case would be a failure of justice and real and substantial J prejudice would be

1987 (2) SA p542

A caused to the accused — If magistrate decides that there has been failure of justice, case can be submitted for review — Magistrate not given licence to vacillate.

Headnote : Kopnota

Section 304A of the Criminal Procedure Act 51 of 1977 should not be applied so sparingly that it is reduced to a dead B letter. The intention of the lawgiver has been unequivocally expressed and it is the bounden duty of judicial officers to give effect to it. The mischief at which the new section is directed is well known and the statutory weapon is to be used with full vigour to combat it. In those rare cases where continuation of a case to its conclusion will result in injustice the provisions of s 304A of the Act must certainly be used.

Before a regional magistrate acts in terms of s 304A of Act 51 C of 1977 he must form the requisite opinion (that the proceedings in respect of which he recorded a conviction are not in accordance with justice). He is not given a licence to vacillate. He must apply his mind to the question of whether there has been or reasonably possibly might have been a failure of justice. If his conclusion is in the affirmative, he must then record the reasons therefor and transmit the record and the reasons for review. Section 304A is to be interpreted in the context of the automatic review procedure created by ss 302 D - 306 and 309(3) of Act 51 of 1977. In particular it is to be noted that the test throughout is whether the relevant proceedings were or were not in accordance with justice. Trivial irregularities or procedural imperfections are immaterial; only where there has been a failure of justice and real and substantial prejudice to the accused, are the proceedings liable to interference. By the same token s 304A is not to be invoked in the absence of such a failure of justice. E

Case Information

Review.

Judgment

Kriegler J:

This is a review case. The accused, a middle aged minor functionary in the Gazankulu Government service, lives in the village of Mapapila with his two wives and nine children. On the night of 8 May 1986 he caught one of his wives and a F certain Samuel Mbhiza committing adultery in the bushes near his kraal. The wife made her get-away but Mbhiza, handicapped by his trousers round his ankles, had to bear the brunt of the accused's anger. The accused struck him on the mouth with his fist, produced and opened a pocket-knife and stabbed him in the right buttock, inflicting a 10 cm incised wound which - by G some ironic quirk of fate and not by design - also involved the scrotum. The result was that the accused faced a charge of assault with intent to inflict grievous bodily harm on Mbhiza.

To that charge he pleaded not guilty. He admitted having stabbed Mbhiza but said that he considered his conduct to have been justified 'because I found the complainant sleeping with my wife'.

H The magistrate, having heard the evidence of the complainant and a daughter of his as also that of accused and his errant wife, invited the prosecutor and the accused to address him on the merits. At that stage the accused asked rhetorically: 'How would the court react if he finds me sleeping with his wife?'

I The magistrate found the accused guilty as charged and then both invited and elicited information relevant to sentence. Before imposing sentence, however, he bethought himself and sent the matter for review under cover of a letter in which inter alia the following was said:

'Although the court has found the accused guilty, it is my view that any reasonable man would not have resisted the impulse and J irritation of such an incident. In convicting the accused, the court applied the principle that provocation is not a

1987 (2) SA p543

Kriegler J

ground of justification, but merely serves as a mitigatory A factor. At the same time the court acknowledged the fact that the accused was so grossly provoked that he could possibly not have appreciated the nature of his doings.

In the light of S v Sass en Andere 1986 (2) SA 146 (NC) I have decided to send this case on review for consideration by the honourable the reviewing Judges before sentence is passed on the accused.'

The Attorney-General was requested to comment and his office B furnished a helpful memorandum dealing with the propriety, of a review before sentence and also commenting on the merits of the conviction. As regards the first question the memorandum drew attention to a recent amendment to the Criminal Procedure Act 51 of 1977 effected by s 22 of Act 33 of 1986. That section C inserted the following provision as s 304A:

'(1) (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...