Van Niekerk v Attorney-General, Transvaal, and Another

• Jurisdiction: South Africa
• Citation: 1990 (4) SA 806 (A)

Van Niekerk v Attorney-General, Transvaal, and Another
1990 (4) SA 806 (A)

1990 (4) SA p806

Citation	1990 (4) SA 806 (A)
Court	Appellate Division
Judge	Van Heerden JA, Nestadt JA and Eksteen JA
Heard	September 13, 1990
Judgment	September 27, 1990

Flynote : Sleutelwoorde

Criminal procedure — Trial — Arraignment — Haste in bringing accused to trial — Accused brought before court some three and a half hours after she had learnt of the charge against her — Crime a serious one, G viz theft of an amount of R40 000 from her employer — Accused not informed that offence a serious one and laboured under impression that only suspended sentence would be imposed — Court holding that an irregularity had occurred in these circumstances which had resulted in a failure of justice — Conviction and sentence set aside. H

Headnote : Kopnota

The appellant was convicted in a regional magistrate's court of the theft of R40 000 from her employer and was sentenced to four years' imprisonment of which one year was conditionally suspended. The appellant alleged that she had not had a fair trial because of the incidents leading up to her appearance in court and accordingly applied I in a Provincial Division to have the proceedings set aside on review. The Provincial Division dismissed the application. On a further appeal the appellant contended that the haste with which she was brought to trial had prejudiced her. It appeared that the appellant, a first offender, appeared in court some three and a half hours after she was informed of the charge against her. She was not informed of the seriousness of the matter when asked by the prosecutor whether she wanted an attorney and was of the impression that she would merely be given a suspended sentence. She pleaded guilty and was found guilty J after being questioned by the magistrate.

1990 (4) SA p807

A Held, that it was a principle of our criminal procedure that an accused ought to be brought to trial without undue delay but he or she was not to be tried on too short notice: he/she was entitled to a reasonable time within which not only to prepare for trial (including the obtaining of legal representation) but also to assess and weigh his/her position.

Held, further, that in the circumstances of the present case the appellant had been prejudiced by being brought to court too hastily and that an irregularity had been caused by this which resulted in a failure B of justice. Appeal allowed and conviction and sentence set aside.

The decision in the Transvaal Provincial Division in Van Niekerk v Attorney-General, Transvaal, and Another reversed.

Case Information

Appeal from the dismissal of an application in the Transvaal Provincial C Division (Weyers J and Myburgh AJ) for the review of proceedings in a criminal trial in a regional magistrate's court. The facts appear from the reasons for judgment.

A P Bruwer for the appellant referred to the following authorities: S v Wessels and Another1966 (4) SA 89 (C); S v Blooms1966 (4) SA 417 (C); S v Nqula1974 (1) SA 801 (E); Ndanozonke and Another v Nel NO and D Another1971 (3) SA 217 (E); S v Mkize1978 (3) SA 1065 (T); S v Shabangu1976 (3) SA 555 (A); Siqodolo v Attorney-General and Another1985 (2) SA 172 (E); S v Radebe; S v Mbonani1988 (1) SA 191 (T); S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another1989 (3) SA 368 (E).

E Mrs E Leonard for the first respondent referred to the following authorities: S v Baloyi1978 (3) SA 290 (T); S v Nkosi1984 (3) SA 345 (A); Volschenk v President, SA Geneeskundige en Tandheelkundige Raad1985 (3) SA 124 (A); S v Radebe; S v Mbonani1988 (1) SA 191 (T); S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another1989 (3) SA 368 (E) F ; S v Mabaso and Another1990 (3) SA 185 (A).

No appearance for the second respondent.

Cur adv vult.

Postea (September 27). G

Judgment

Nestadt JA:

Appellant was convicted by a regional magistrate of the theft of R40 229,04 from her employer. She was sentenced to four years' imprisonment of which one year was conditionally suspended. Alleging that the proceedings had been irregular she sought to review them. This was done by way of an...