S v Nkuna

• Jurisdiction: South Africa
• Citation: 2013 (2) SACR 541 (GNP)

S v Nkuna
2013 (2) SACR 541 (GNP)

2013 (2) SACR p541

Citation	2013 (2) SACR 541 (GNP)
Case No	A 62/2012
Court	North Gauteng High Court, Pretoria
Judge	Makgoka J and Ratshibvumo AJ
Heard	April 18, 2013
Judgment	May 6, 2013
Counsel	OK Matshego for the appellant (instructed by the Justice Centre, Pretoria).; JJ Jacobs for the state.

Flynote : Sleutelwoorde

Trial — Presiding officer — Recusal of — Where presiding officer having previously B presided over bail application of accused — Accused's previous convictions disclosed in bail proceedings and magistrate remarking on them — Magistrate should have recused himself in subsequent trial.

Headnote : Kopnota

The appellant was convicted in a magistrates' court of theft and sentenced to C 30 months' imprisonment. It appeared that he had applied for bail in proceedings before the same magistrate who convicted him, and in the bail proceedings it was disclosed that the appellant had two previous convictions for theft and an outstanding case of housebreaking against him. The magistrate refused bail and remarked that the appellant had the tendency to commit crimes and was a repeat offender with previous convictions. D

Held, that the magistrate's judgment was clearly blurred by his prior knowledge of the appellant's previous convictions and his conduct in the trial thereafter was testimony to that fact. He should have recused himself and his failure to do so vitiated the whole proceedings. On that basis alone the conviction and sentence had to be set aside. (Paragraph [9] at 544b.)

Cases cited

R v Blom 1939 AD 188: applied E

S v Bruinders 2012 (1) SACR 25 (WCC): dicta at 29 applied

S v Cooper 1976 (2) SA 875 (T): referred to

S v Hlati 2000 (2) SACR 325 (N) (2000 (8) BCLR 921): distinguished and not followed F

S v Mavuso 1987 (3) SA 499 (A): applied

S v Mdletye [2005] JOL 13933 (Tk): applied

S v Mofokeng and Others (GSJ case No A 421/11): applied

S v Roberts 1999 (2) SACR 243 (SCA) (1999 (4) SA 915; [1999] 4 All SA 285): dicta at 249 applied. G

Case Information

OK Matshego for the appellant (instructed by the Justice Centre, Pretoria).

JJ Jacobs for the state.

Appeal from a conviction and sentence in a magistrates' court. The facts appear from the reasons for judgment. H

Judgment

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

2013 (2) SACR p542

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...