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South Africa Judgment

Free State High Court, Bloemfontein

S v Makwenda (R350/2018) [2018] ZAFSHC 214 (24 December 2018)

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Source document

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

Applicant

Charles Makwenda

Respondent

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2018] ZAFSHC 214

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Act, 51 of 1977

Legislation

Legislation referenced in the available case record.

Immigration Act, 13 of 2002

Legislation

Legislation referenced in the available case record.

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