S v Mhlambiso and Another (C56/2013, 27/2013) [2013] ZAECGHC 117; 2014 (1) SACR 610 (ECG) (21 November 2013)

S v Mhlambiso and Another (C56/2013, 27/2013) [2013] ZAECGHC 117; 2014 (1) SACR 610 (ECG) (21 November 2013)

The magistrate committed a procedural irregularity by allowing the state to add a charge of trespassing after evidence had already been led, without affording the accused an opportunity to plead to the new charge. The Criminal Procedure Act does not permit the addition of new charges after the commencement of evidence, and neither the amendment nor curing provisions apply to this situation. The convictions on the added charge are invalid and must be set aside. It would be unfair to remit the matter for trial de novo, and the interests of justice require that the entire proceedings, including the convictions, be set aside.

Citation
[2013] ZAECGHC 117
Parties
Applicant: The State; Defendant: Bulelani Mhlambiso; Defendant: Lizwe Sali
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
21 November 2013
Case Number
C56/2013, 27/2013
Procedural Posture
Special Review / Review After Conviction and Before Sentencing
Outcome
The entire proceedings, including the convictions of both accused, are set aside.
Judges
B C Hartle, J D Pickering
Legal Topics
Joinder of Charges, Amendment of Charge Sheet, Procedural Irregularity, Trespass Act, Competent Verdict, Review Proceedings
Criminal Law Civil Procedure Joinder of Charges Amendment of Charge Sheet Procedural Irregularity Trespass Act Competent Verdict Review Proceedings

Case Brief

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Parties

The State

Applicant

Bulelani Mhlambiso

Defendant

Lizwe Sali

Defendant

Procedural Posture

Special Review / Review After Conviction and Before Sentencing

Legal Issues

  1. 1 Whether the magistrate was permitted to add a new charge of trespassing after evidence had already been led.
  2. 2 Whether the convictions on the added charge of trespassing can stand in light of the procedural irregularity.
  3. 3 Whether the matter should be remitted for trial de novo or the proceedings set aside entirely.

Ratio Decidendi

The magistrate committed a procedural irregularity by allowing the state to add a charge of trespassing after evidence had already been led, without affording the accused an opportunity to plead to the new charge. The Criminal Procedure Act does not permit the addition of new charges after the commencement of evidence, and neither the amendment nor curing provisions apply to this situation. The convictions on the added charge are invalid and must be set aside. It would be unfair to remit the matter for trial de novo, and the interests of justice require that the entire proceedings, including the convictions, be set aside.

Court Disposition

The entire proceedings, including the convictions of both accused, are set aside.

Orders

  • The convictions of both accused on the charge of trespassing are set aside.
  • The entire proceedings are set aside and no further action is ordered.