S v Joubert (A149/09) [2009] ZAGPPHC 72 (2 March 2009)

S v Joubert (A149/09) [2009] ZAGPPHC 72 (2 March 2009)

The referral of the accused to the regional court for sentence under section 122(C)(2)(a) was unlawful because the accused pleaded not guilty and did not admit all allegations. The proper procedure was to refer the matter under section 116 after trial, with the regional magistrate requesting reasons for conviction and reconstruction of the record. In the absence of a reconstructed record and reasons for conviction, the conviction cannot be set aside at this stage. The matter must be referred back to the magistrate's court for proper procedure and record reconstruction. Only if reconstruction is impossible should the matter be referred to the High Court under section 304(A).

Citation
[2009] ZAGPPHC 72
Parties
Applicant: The State; Respondent: Jacobus Joubert
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 March 2009
Case Number
A149/09
Procedural Posture
Special Review / High Court Review of Regional Magistrate's Referral
Outcome
Referral to the regional court for sentence set aside; accused referred back to magistrate's court and remains on warning.
Judges
TLHAPI V V, MOLOPA L
Legal Topics
Criminal Procedure Act Section 122, Referral for Sentence, Record Reconstruction, Irregularities in Proceedings
Criminal Law Civil Procedure Criminal Procedure Act Section 122 Referral for Sentence Record Reconstruction Irregularities in Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Jacobus Joubert

Respondent

Procedural Posture

Special Review / High Court Review of Regional Magistrate's Referral

Legal Issues

  1. 1 Whether the referral of the accused to the regional court for sentence under section 122(C)(2)(a) of the Criminal Procedure Act was lawful.
  2. 2 Whether the absence of a complete record of proceedings invalidates the conviction and referral.
  3. 3 What procedure should be followed when the record of proceedings is incomplete or missing.

Ratio Decidendi

The referral of the accused to the regional court for sentence under section 122(C)(2)(a) was unlawful because the accused pleaded not guilty and did not admit all allegations. The proper procedure was to refer the matter under section 116 after trial, with the regional magistrate requesting reasons for conviction and reconstruction of the record. In the absence of a reconstructed record and reasons for conviction, the conviction cannot be set aside at this stage. The matter must be referred back to the magistrate's court for proper procedure and record reconstruction. Only if reconstruction is impossible should the matter be referred to the High Court under section 304(A).

Court Disposition

Referral to the regional court for sentence set aside; accused referred back to magistrate's court and remains on warning.

Orders

  • The referral to the regional court for sentence in terms of section 122(C)(2)(a) of Act 51 of 1977 is set aside.
  • The accused is referred back to the magistrate's court.