S v Makwenda (R350/2018) [2018] ZAFSHC 214 (24 December 2018)
- Citation
- [2018] ZAFSHC 214
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Musi, AJP
- Case number
- R350/2018
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Musi, AJP
- Case number
- R350/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the magistrate failed to formally convict the accused before sentencing, which is a procedural irregularity. Sentencing without a conviction is not in accordance with justice. The safest course is to set aside both the purported conviction and sentence to prevent confusion in the criminal record system and ensure procedural fairness.
Court disposition
The conviction and sentence are set aside.
Orders
- The conviction and sentence are set aside.
02
Material facts
Parties
The State
ApplicantCharles Makwenda
Respondent03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the magistrate erred by sentencing the accused without a formal conviction.
- 02
Whether proceedings were in accordance with justice given the absence of a guilty verdict.
Party arguments
- Applicant
- The control magistrate submitted the matter for special review, arguing that the proceedings were irregular because the accused was sentenced without a formal conviction being entered. The magistrate purported to act under section 112(1)(a) of the Criminal Procedure Act, but failed to record a guilty verdict in the transcribed proceedings.
- Respondent
- The accused pleaded guilty to contravening section 49(1)(a) of Act 13 of 2002, entering or remaining in South Africa without valid documents. However, there was no indication in the record that he was formally convicted before sentencing.
05
Court’s reasoning
Legal principles
- 01
Section 112(1)(a) of the Criminal Procedure Act, 51 of 1977
Sentencing must be preceded by a formal conviction; failure to do so renders the proceedings irregular.
- 02
Section 112(1)(a) of the Criminal Procedure Act, 51 of 1977
A conviction must be clearly recorded in the proceedings to avoid confusion and ensure justice.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the magistrate failed to formally convict the accused before sentencing, which is a procedural irregularity. Sentencing without a conviction is not in accordance with justice. The safest course is to set aside both the purported conviction and sentence to prevent confusion in the criminal record system and ensure procedural fairness.
Obiter and limits
- The absence of a conviction in the transcribed proceedings may result in the conviction and sentence being incorrectly recorded against the accused's name.
- Setting aside both the conviction and sentence will obviate confusion at the criminal record centre.
Court disposition
The conviction and sentence are set aside.
- The conviction and sentence are set aside.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Review No.: R350/2018
In the review of:-
THE
STATE
and
CHARLES
MAKWENDA
CORAM: MUSI,
AJP
JUDGMENT BY: MUSI, AJP
DELIVERED ON: 24 December 2018
[1] This matter was sent on special review by the control magistrate, Bloemfontein.
[2] The accused was purportedly convicted of contravening section 49(1)(a) of Act 13 of 2002 – entering or remaining in the
Republic of South Africa without valid documents.
[3] He pleaded guilty but was not convicted by the magistrate. The magistrate purported to act in terms of section 112(1)(a) of the Criminal Procedure Act, 51 of 1997[1].
[4] Sentencing can only be preceeded by a guilty verdict. In this case there was no verdict and the accused was not informed that he is being guilty.
[5] I agree with the control magistrate that the proceedings were not in accordance with justice. There being no conviction the sentence ought to be set aside.
[6] Since the magistrate has indicated on the J15 that the accused is guilty but not on the transcribed proceedings, the chances are that the conviction and sentence are recorded against the accused’s name.
[7] The safest route to follow is to set aside the purported conviction as well. It will also obviate confusion at the criminal record centre.
[8] I accordingly make the following order.
The conviction and sentence are set aside.
____
C. J. MUSI, J
[1] Section 112(1)(a) reads as follows: “The presiding judge may, if he is of the opinion that the offence does not merit the sentence of death, or the presiding judge, regional magistrate or magistrate may, if he is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a whipping or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he has pleaded guilty on his plea of guilty only and- (i) impose any competent sentence, other than the sentence of death or imprisonment or any other form of detention without the option of a fine or a whipping or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette; or (ii) deal with the accused otherwise in accordance with law;”
[1] Section 112(1)(a) reads as follows:
“The presiding judge may, if he is of the opinion that the offence does not merit the sentence of death, or the presiding judge, regional magistrate or magistrate may, if he is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a whipping or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he has pleaded guilty on his plea of guilty only and-
(i) impose any competent sentence, other than the sentence of death or imprisonment or any other form of detention without the option of a fine or a whipping or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette; or
(ii) deal with the accused otherwise in accordance with law;”
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