S v Seleke

• Jurisdiction: South Africa
• Citation: 2014 (2) SACR 199 (NCK)

S v Seleke
2014 (2) SACR 199 (NCK)

2014 (2) SACR p199

Citation	2014 (2) SACR 199 (NCK)
Case No	42/2013
Court	Northern Cape Division, Kimberley
Judge	Lacock J and Mamosebo AJ
Heard	August 1, 2013
Judgment	November 2, 2013
Counsel	Information not supplied

Flynote : Sleutelwoorde

Trial — Presiding officer — Unavailability of to continue with trial — Part-heard trial where evidence already adduced and accused convicted — Other magistrate not entitled to proceed with trial de novo — Sentence imposed by new magistrate — Court on review holding that no purpose would be served by remitting matter to original magistrate for finalisation of case, and sentence imposed by new magistrate eminently G sensible sentence — Court regarding subsequent proceedings as proceedings in terms of s 275 of Criminal Procedure Act 51 of 1977.

Headnote : Kopnota

The accused appeared in a magistrates' court in Kimberley in 1999 charged with a traffic offence. He pleaded guilty to the charge and was questioned by the H magistrate in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA). After questioning, the magistrate altered the plea to one of not guilty in terms of s 113 of the CPA as she was not satisfied that he had admitted all the elements of the offence. The matter was subsequently postponed and eventually evidence was led and both parties closed their cases. The magistrate then remanded the case for the accused's mother to I testify in mitigation of sentence. The accused failed to appear on the date to which the case was postponed and a warrant for his arrest was authorised. The accused's attendance in court was secured only on 16 May 2013, some 14 years later when he appeared before a different magistrate. The matter was postponed once again and when the matter came before court the magistrate ordered that the case start de novo before her as the original magistrate was not available. It appeared that that magistrate had been J

2014 (2) SACR p200

A transferred to another district but no indication was given of any attempts to bring that magistrate to Kimberley to finalise the matter. The accused then pleaded guilty in terms of s 112 of the CPA on the same charge and he was convicted and sentenced to a fine of R4000 or four months' imprisonment, and he was given an opportunity to pay the fine in instalments. The matter then came before a judge on automatic review.

B Held, that, regard being had to s 275 of the CPA, the second proceedings before the magistrate were irregular. That magistrate was not competent to set aside the conviction. The proceedings before the second magistrate should have been set aside but it would serve no purpose to set aside the sentence that had been imposed. To refer the matter for resentencing before the original magistrate or any other magistrate in terms of s 275 of the CPA C would only cause hardship to the accused and no worthwhile purpose would be served. The sentence imposed was an eminently sensible one in that it had kept the accused out of prison. He had already paid almost half of the fine. The court accordingly regarded the proceedings in terms whereof the accused was sentenced by the second magistrate as proceedings in terms of s 275 of the CPA. The conviction and sentence were confirmed. (Paragraphs [15]–[17] at 204h–205b.)

Annotations:

Cases cited

Case law

Key v Attorney-General, Cape Provincial Division and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788; [1996] ZACC 25): dictum in para [12] applied D

S v Lapping 1998 (1) SACR 409 (W) ([1998] 1 All SA 331): dictum at 414b – f applied E

S v Makgetle; S v Matlowe and Another 1980 (4) SA 256 (B): applied.

Legislation cited

Statutes

F The Criminal Procedure Act 51 of 1977, ss 112, 112(1)(b), 115 and 275: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-370, 2-371 and 2-406.

Case Information

Special review.

Order

(1)

G The proceedings up to and including the stage of conviction by magistrate Padayachee are hereby set aside.

(2)

The conviction of the accused by magistrate Motlekar is confirmed.

(3)

The sentencing proceedings of 26 June 2013 before magistrate Padayachee are hereby confirmed.

Judgment

Mamosebo AJ (Lacock J concurring):

[1] H This matter came before us by way of special review. It was submitted at the instance of the chief magistrate for Kimberley, Mr Krieling, following an administrative judicial oversight. Ms I Padayachee, a magistrate of the district court, Kimberley, ordered that the trial start de novo. The accused had already been convicted by Ms Motlekar and the accused had been granted a postponement to call a defence witness on sentence.

[2] The accused, Dennis Seleke, faced a charge of the contravention of J s 122(1)(a) of the Road Traffic Act 29 of 1989 (the Act), alternatively,

2014 (2) SACR p201

Mamosebo AJ (Lacock J concurring)

contravening s 122(2)(a) of the Act in that on 8 February 1999 he drove A a motor vehicle on a public road while he was under the influence of intoxicating liquor, in the alternative, that the concentration of alcohol in his blood exceeded the prescribed limit of 0,08 g per 100 ml, that of 0,20 g per 100 ml. He first appeared before magistrate Motlekar in 1999 and conducted his own defence. He pleaded guilty on B 21 April 1999. The magistrate questioned him in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) and altered the plea to one of not guilty in terms of s 113 of the CPA, because she was...