S v Nelushi

• Jurisdiction: South Africa
• Judge: Lukoto J
• Judgment Date: 11 December 2003
• Docket Number: 795/03
• Court: Venda High Court
• Hearing Date: 11 December 2003
• Citation: 2006 (1) SACR 462 (V)

Lukoto J:

This matter comes before me on automatic review.

The accused was charged with the offence of robbery. He pleaded guilty to the charge and elected to conduct his own defence. He was convicted on his plea of guilty and sentenced to two years' imprisonment. G

When the matter came before me it was accompanied by a letter to the Registrar dated 13 November 2003 in which the magistrate explained that the case was received from the transcribers on 11 November 2003, though the transcriber's certificate stated that it was transcribed on 31 October 2003. The letter further stated that the H record was reconstructed in the presence of the public prosecutor and the interpreter but the accused was not present. The letter was countersigned by the prosecutor and the interpreter. When perusing the record I noticed certain shortcomings in the record of the proceedings, the conviction and the sentence. I then directed an enquiry to the I learned magistrate in which I posed the following:

1

Handwritten insertions of words or phrases in the record of proceedings were held to be totally unacceptable in S v Rudzani Makatu (review case No 114/2003 delivered on 27 June 2003). J

Lukoto J

Guidelines for proper reconstruction of the record were set out on p 14 of that judgment. Why did the learned magistrate A not follow that judgment in order to give effect to the stare decisis doctrine, instead of attempting to effect reconstruction in an unorthodox manner?

2

The issue of 'inaudibles' in the record is a major problem in this Division and has been dealt with in numerous review judgments of B this Court. It should be sorted out once and for all with the transcribers. For its part, the Court should see to it that the microphones are tested before the commencement of hearings and subsequent adjournments and resumptions. Everybody taking part in the proceedings should be requested to talk distinctly and clearly into the C microphone.

Ad conviction

3

The accused pleaded guilty to the charge and was convicted on his plea of guilty. However, he was not asked if he pleaded guilty freely, voluntarily and without any undue influence. In S v Seabi and Another 2003 (1) SACR 620 (T) it was held that an accused should plead guilty freely, voluntarily and without any D undue influence in order to avoid conviction and sentence on 'a forced plea of guilty'. See also S v Avhapfani Steven Nemubvumoni (review case No 145/2003 delivered on 13 November 2003). E

Ad sentence

4

The public prosecutor was not invited to cross-examine the accused in mitigation of sentence. Did this omission not constitute an irregularity? F

5

Was the sentence imposed appropriate where the accused was:

5.1

a 21-year-old first offender;

5.2

who has passed Standard 10;

5.3

who pleaded guilty;

5.4

who showed remorse; G

5.5

who probably acted under peer-group pressure:

5.6

where nobody was injured; and

5.7

besides cash of R873, the value of the Nokia cellphone was not indicated?

The learned magistrate replied to my enquiry and I quote his reply verbatim for the sake of completeness: H

'1

It is true that the record had some handwritten insertion (sic) words. As I am on vacation leave I did not manage to get the judgment in S v Rudzani Makatu (review case No 114/2003 delivered on 27 June 2003). But I still recall what was mentioned in the review judgment of S v Mashudu Nicholas I Masiagwala (review case No 189/2003 delivered on 29 September 2003) where the Honourable Reviewing Judge advice (sic) that the presiding officer, prosecutor and the accused should listen to the original audiocassettes and thereafter compile a record of the missing evidence and attach a certificate to it. In...