S v Joubert (Review) (03/2023) [2023] ZANWHC 180 (2 October 2023)

S v Joubert (Review) (03/2023) [2023] ZANWHC 180 (2 October 2023)

The proceedings before the second Regional Magistrate were fundamentally irregular and not in accordance with justice. The accused did not plead afresh to the charges after the matter was remitted de novo, and the conviction was based on a statement referencing the previous plea and conviction, which had already been set aside. Both the defence counsel and the public prosecutor misled the court regarding the nature of the previous review order, resulting in a failure to comply with the proper procedure under section 112(2) and section 312 of the Criminal Procedure Act. The review court held that the matter must commence de novo in its entirety before a differently constituted court,...

Citation
[2023] ZANWHC 180
Parties
Applicant: The State; Respondent: Lynette Martha Joubert
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
2 October 2023
Case Number
03/2023
Procedural Posture
Criminal Review / Special Review After Conviction But Before Sentence
Outcome
The conviction is set aside and the proceedings are declared not in accordance with justice. The matter is referred back to the Regional Court to commence de novo before a differently constituted court, excluding the previously involved Regional Magistrates and public prosecutors.
Judges
A H Petersen, JT Djaje
Legal Topics
Criminal Procedure Act Section 304a, Plea and Conviction Irregularity, Review Proceedings, Section 112 Plea Procedure
Criminal Law Civil Procedure Criminal Procedure Act Section 304a Plea and Conviction Irregularity Review Proceedings Section 112 Plea Procedure

Case Brief

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Parties

The State

Applicant

Lynette Martha Joubert

Respondent

Procedural Posture

Criminal Review / Special Review After Conviction But Before Sentence

Legal Issues

  1. 1 Whether the proceedings before the second Regional Magistrate were in accordance with justice.
  2. 2 Whether the accused was properly convicted in terms of section 112(2) of the Criminal Procedure Act.
  3. 3 Whether the previous review order was correctly interpreted and implemented by the Regional Magistrate and counsel.

Ratio Decidendi

The proceedings before the second Regional Magistrate were fundamentally irregular and not in accordance with justice. The accused did not plead afresh to the charges after the matter was remitted de novo, and the conviction was based on a statement referencing the previous plea and conviction, which had already been set aside. Both the defence counsel and the public prosecutor misled the court regarding the nature of the previous review order, resulting in a failure to comply with the proper procedure under section 112(2) and section 312 of the Criminal Procedure Act. The review court held that the matter must commence de novo in its entirety before a differently constituted court,...

Court Disposition

The conviction is set aside and the proceedings are declared not in accordance with justice. The matter is referred back to the Regional Court to commence de novo before a differently constituted court, excluding the previously involved Regional Magistrates and public prosecutors.

Orders

  • The proceedings in this matter are not in accordance with justice.
  • The conviction is set aside.