S v Nkuna

• Jurisdiction: South Africa
• Judge: Makgoka J and Ratshibvumo AJ
• Judgment Date: 06 May 2013
• Citation: 2013 (2) SACR 541 (GNP)
• Docket Number: A 62/2012
• Hearing Date: 18 April 2013
• Counsel: OK Matshego for the appellant (instructed by the Justice Centre, Pretoria). JJ Jacobs for the state.
• Court: North Gauteng High Court, Pretoria

Ratshibvumo AJ (Makgoka J concurring):

[1] Mr Nkuna, the appellant, was sentenced to 30 months' imprisonment on 17 November 2011 following a conviction by Mokgopong I District Court on a charge of theft. It was alleged that he stole a cell- phone from a motor vehicle belonging to Ms Dalene du Plessis (the complainant). He appeals against the conviction and the sentence with the leave of that court.

[2] Two issues arise from this appeal. Firstly, whether the magistrate's prior knowledge of the appellant's previous convictions, obtained during J

Ratshibvumo AJ (Makgoka J concurring)

A the bail application in which he presided, precluded him from presiding in the subsequent trial; secondly, whether the proper approach was applied to the state's circumstantial evidence.

[3] During the bail application before the same magistrate who later convicted him, the appellant disclosed two previous convictions for theft B and an outstanding case of housebreaking. Bail was refused, after the magistrate remarked that the appellant had 'the tendency to commit crimes, being a repeat offender (with) previous convictions'.

[4] The issue is the appropriateness of the magistrate to have presided over the trial under those circumstances. In the ordinary course, a C judicial officer is not entitled to know of an accused's previous convictions until after the conviction. Sections 89, 197, 211 and 271 of the Criminal Procedure Act [1] are all against the disclosure of previous convictions at any stage before the conviction of an accused person. Section 211 in particular provides:

D 'Except where otherwise expressly provided by this Act or the Child Justice Act, 2008, or except where the fact of a previous conviction is an element of any offence with which an accused is charged, evidence shall not be admissible at criminal proceedings in respect of any offence to prove that an accused at such proceedings had previously been convicted of any offence, whether in the Republic or elsewhere, and no E accused, if called as a witness, shall be asked whether he or she has been so convicted.'

[5] It is a long-standing practice in our courts that, for the judicial officer to be informed of the previous convictions before the accused is F convicted, constitutes an irregularity that nullifies the proceedings as a whole. In S v Mavuso [2] the appellate division set aside the conviction and the sentence because it held that the proceedings were irregular after the accused was convicted by a judicial officer who knew his previous convictions. [3] In S v Mdletye [4] the high court did not attach any weight to the fact that the accused had pleaded guilty to the charge, thereby G minimising prejudice. Once the previous convictions were known to the magistrate during questioning in terms of s 112(1)(b) of the...