Masemola v S (A42/18) [2018] ZAGPPHC 758 (1 March 2018)

Masemola v S (A42/18) [2018] ZAGPPHC 758 (1 March 2018)

The absence of a mechanically recorded plea and evidence means there is no record for the second magistrate to consider under section 275(1) of the Criminal Procedure Act. Without such a record, the proceedings cannot be confirmed as being in accordance with justice. The failure of the stenographer to ensure proper recording and to alert the presiding officer to the malfunctioning equipment resulted in a fatal procedural defect. Consequently, the conviction cannot stand and must be set aside.

Citation
[2018] ZAGPPHC 758
Parties
Applicant: Tysen Sekome Masemola; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 March 2018
Case Number
A42/18
Procedural Posture
Special Review / High Court Review of Magistrate's Proceedings
Outcome
Conviction set aside due to absence of recorded proceedings.
Judges
P Pistorius, AJ Bam
Legal Topics
Housebreaking and Theft, Mechanical Recording Failure, Section 275 Criminal Procedure Act, Setting Aside Conviction
Criminal Law Civil Procedure Housebreaking and Theft Mechanical Recording Failure Section 275 Criminal Procedure Act Setting Aside Conviction

Case Brief

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Parties

Tysen Sekome Masemola

Applicant

The State

Respondent

Procedural Posture

Special Review / High Court Review of Magistrate's Proceedings

Legal Issues

  1. 1 Whether the absence of a mechanically recorded plea and evidence invalidates the proceedings.
  2. 2 Whether a second magistrate can pass sentence in the absence of a recorded record under section 275(1) of Act 51 of 1977.
  3. 3 Whether the conviction can stand in the absence of a proper record.

Ratio Decidendi

The absence of a mechanically recorded plea and evidence means there is no record for the second magistrate to consider under section 275(1) of the Criminal Procedure Act. Without such a record, the proceedings cannot be confirmed as being in accordance with justice. The failure of the stenographer to ensure proper recording and to alert the presiding officer to the malfunctioning equipment resulted in a fatal procedural defect. Consequently, the conviction cannot stand and must be set aside.

Court Disposition

Conviction set aside due to absence of recorded proceedings.

Orders

  • The conviction of the accused is set aside.