S v Joubert (Review) (03/2023) [2023] ZANWHC 180 (2 October 2023)
- Citation
- [2023] ZANWHC 180
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- A H Petersen, JT Djaje
- Case number
- 03/2023
More details
- Court
- North West High Court, Mafikeng
- Panel
- A H Petersen, JT Djaje
- Case number
- 03/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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, excluding the Regional Magistrates and public prosecutors previously involved, to ensure justice and procedural correctness.
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.
- The matter is referred back to the Regional Court to commence de novo in its entirety before a differently constituted court, excluding all Regional Magistrates and public prosecutors previously involved.
- A copy of the judgment must be brought to the attention of the Acting Regional Court President by the Registrar to ensure compliance with paragraph 3 of this order.
- A copy of the judgment must also be brought to the attention of the Director of Public Prosecutions, North West Province.
02
Material facts
Parties
The State
ApplicantLynette Martha Joubert
Respondent Counsel: Advocate ZwiegelaarAmounts and remedies
- Total Amount Involved in Theft Charges: ZAR 596,953.08
- Original Sentence Imposed: 15
- Time Served Before Release (days): 267
03
Procedural history
Posture
Criminal Review / Special Review After Conviction But Before Sentence
04
Questions and positions
Legal issues
- 01
Whether the proceedings before the second Regional Magistrate were in accordance with justice.
- 02
Whether the accused was properly convicted in terms of section 112(2) of the Criminal Procedure Act.
- 03
Whether the previous review order was correctly interpreted and implemented by the Regional Magistrate and counsel.
- 04
Whether the accused was required to plead afresh to the charges after the matter was remitted de novo.
Party arguments
- Applicant
- The State accepted the plea and the statement in terms of section 112(2) of the Criminal Procedure Act, but later acknowledged procedural irregularities regarding the accused not pleading afresh to the charges. The prosecutor ultimately agreed that the proper process required the accused to plead again if a new case number was used, and concurred that the proceedings were irregular.
- Respondent
- Advocate Zwiegelaar for the accused argued that the matter was remitted for compliance with section 112(1)(b) or 112(2) after the conviction and sentence were set aside on review. She submitted a statement in terms of section 112(2), referencing the previous plea and conviction, and contended that the proceedings could continue on the new case number without requiring a fresh plea. This position was based on a misinterpretation of the previous review order.
05
Court’s reasoning
Legal principles
- 01
Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A); HLB International (South Africa) v MWRK Accountants and Consultants [2022] ZASCA 52
The intention of a court order must be ascertained primarily from its language, read as a whole, and interpreted in light of the manifest purpose and relevant background facts.
- 02
Criminal Procedure Act 51 of 1977, section 312
Where a conviction and sentence under section 112 are set aside on review for non-compliance with section 112(1)(b) or (2), the matter must be remitted to the trial court to comply with the relevant provision or act in terms of section 113.
- 03
S v Joubert (04/2017, RC150/16) [2018] ZANWHC 3 (8 March 2018)
Failure to invoke the provisions of section 112(1)(b) or 112(2) when an accused pleads guilty constitutes an irregularity and renders the proceedings not in accordance with justice.
06
Ratio, limits and disposition
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, excluding the Regional Magistrates and public prosecutors previously involved, to ensure justice and procedural correctness.
Obiter and limits
- The further procedure of amending a plea of guilty to include additional charges at the sentencing stage is highly irregular and should not be permitted.
- The delay in finalising this matter, spanning more than seven years since the accused initially pleaded, is a grave injustice and undermines the administration of justice and the right to a speedy trial.
- The Regional Magistrate should have insisted on the production of the review court order to avoid the perpetuation of procedural errors.
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.
- The proceedings in this matter are not in accordance with justice.
- The conviction is set aside.
- The matter is referred back to the Regional Court to commence de novo in its entirety before a differently constituted court, excluding all Regional Magistrates and public prosecutors previously involved.
- A copy of the judgment must be brought to the attention of the Acting Regional Court President by the Registrar to ensure compliance with paragraph 3 of this order.
- A copy of the judgment must also be brought to the attention of the Director of Public Prosecutions, North West Province.
Source and reliance status
North West High Court, Mafikeng
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