S v Mofokeng and Another [2009] ZAFSHC 109 (29 October 2009)

S v Mofokeng and Another [2009] ZAFSHC 109 (29 October 2009)

The accused were denied their constitutional right to a fair trial by not being allowed to testify in their own defence, despite expressly electing to do so. The magistrate's failure to facilitate their testimony and to assist them as unrepresented accused constituted a material irregularity that vitiated the proceedings. The irregularities were of such a nature that the convictions and sentences must be set aside on this ground alone. In terms of the Criminal Procedure Act, where convictions are set aside due to technical irregularity, the accused may be retried de novo. The matter is therefore remitted for re-hearing before another magistrate.

Citation
[2009] ZAFSHC 109
Parties
Applicant: The State; Respondent: Bennet Mofokeng; Respondent: Another
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 October 2009
Case Number
456/09
Procedural Posture
Criminal Review / Automatic Review Under Section 302 and 304 of the Criminal Procedure Act
Outcome
Convictions and sentences set aside; matter remitted for re-hearing before another magistrate.
Judges
L.J. Lekale, M.B. Molemela
Legal Topics
Right to Fair Trial, Adducing Evidence, Automatic Review, Irregularity in Proceedings
Criminal Law Civil Procedure Right to Fair Trial Adducing Evidence Automatic Review Irregularity in Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Bennet Mofokeng

Respondent

Another

Respondent

Procedural Posture

Criminal Review / Automatic Review Under Section 302 and 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the accused's right to testify and adduce evidence was infringed.
  2. 2 Whether the failure to allow the accused to testify constitutes a material irregularity.
  3. 3 Whether the convictions and sentences should be set aside due to procedural defects.

Ratio Decidendi

The accused were denied their constitutional right to a fair trial by not being allowed to testify in their own defence, despite expressly electing to do so. The magistrate's failure to facilitate their testimony and to assist them as unrepresented accused constituted a material irregularity that vitiated the proceedings. The irregularities were of such a nature that the convictions and sentences must be set aside on this ground alone. In terms of the Criminal Procedure Act, where convictions are set aside due to technical irregularity, the accused may be retried de novo. The matter is therefore remitted for re-hearing before another magistrate.

Court Disposition

Convictions and sentences set aside; matter remitted for re-hearing before another magistrate.

Orders

  • The convictions and sentences are set aside.
  • The matter is remitted to the Magistrate's Court for re-hearing by another magistrate.