S v Msomi

• Jurisdiction: South Africa
• Judge: Nicholson J and Msimang J
• Judgment Date: 01 April 2009
• Docket Number: DR143/08
• Hearing Date: 01 March 2009
• Counsel: Special review. The facts and issues appear from the judgment of Nicholson J, in which Msimang J concurred.
• Court: Natal Provincial Division

Nicholson J:

[1] The accused E in this matter was charged with the offence of theft of certain clothing and other objects out of a motor vehicle on 16 July 2004. On 3 September 2007 he pleaded guilty to the said charge.

[2] He was found guilty pursuant to the said plea. The matter was F adjourned to 7 November 2007 for evidence in mitigation of sentence. It then transpired that the accused was previously charged with and convicted of the same offence in case No B 1886/04 on 7 October 2004 and was sentenced to three years' imprisonment suspended on appropriate conditions.

G [3] In the previous case he used the name Andile Sudukala and evidence from a fingerprint expert revealed that he was the same accused. Fortunately, the accused has been released. Once the accused is convicted the magistrate has no power to alter or set aside the conviction. See S v Leeuw 1980 (3) SA 815 (A) at 823A - G.

H [4] The magistrate was therefore functus officio once he found the accused guilty the second time, and sent the matter for special review.

[5] The magistrate made the following order:

The accused's plea of autrefois convict or acquit in terms of s 106 of Act I 51 of 1977 is upheld - accused absolved and case sent for review for formalization of this order.

[6] The real problem is that the accused raised no such plea and in fact pleaded guilty. However, the facts that emerged at the time of sentence provide the locus classicus of autrefois convict. See S v Basson J 2004 (1) SACR 285 (CC) at 313 et seq.

Nicholson J

[7] In the particular circumstances of this matter the magistrate ought to A have invoked the provisions of s 304A which provide for magistrates who are faced with irregular proceedings after conviction but before sentence.

[8] Section 304A provides for the magistrate to stop the proceedings and send the matter to the High Court for review. The judge dealing with the review shall have the same...