S v Mokwena and Another (36/2020; B800/2019) [2020] ZALMPPHC 38 (18 June 2020)

S v Mokwena and Another (36/2020; B800/2019) [2020] ZALMPPHC 38 (18 June 2020)

The High Court found that the trial magistrate's conduct during the questioning of the accused was irregular, combative, and prejudicial, amounting to cross-examination at a stage when the accused were not obliged to answer. The explanations of procedural rights, including the right to cross-examination and the right to testify in mitigation, were inadequate and irregular. The cumulative effect of these irregularities, together with the delay in forwarding the record for review, constituted a failure of justice and a breach of the accused's constitutional rights to a fair trial. Accordingly, the convictions and sentences were set aside under section 22 of the Superior Court Act.

Citation
[2020] ZALMPPHC 38
Parties
Applicant: The State; Respondent: Mokwena, Khashane Stephen; Respondent: Mamabolo, Lina
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
18 June 2020
Case Number
36/2020; B800/2019
Procedural Posture
Criminal Law Review / Automatic Review of Magistrate's Conviction and Sentence
Outcome
Convictions and sentences of both accused set aside due to gross procedural irregularities and failure of justice.
Judges
T P Mudau, M V Semenya
Legal Topics
Fair Trial Rights, Judicial Irregularity, Automatic Review, Cross Examination, Procedural Fairness
Criminal Law Civil Procedure Fair Trial Rights Judicial Irregularity Automatic Review Cross Examination Procedural Fairness

Case Brief

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Parties

The State

Applicant

Mokwena, Khashane Stephen

Respondent

Mamabolo, Lina

Respondent

Procedural Posture

Criminal Law Review / Automatic Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the trial magistrate's conduct during questioning of the accused constituted a gross irregularity.
  2. 2 Whether the accused's rights to a fair trial under section 35 of the Constitution were infringed.
  3. 3 Whether the explanations of procedural rights to the accused were adequate and lawful.

Ratio Decidendi

The High Court found that the trial magistrate's conduct during the questioning of the accused was irregular, combative, and prejudicial, amounting to cross-examination at a stage when the accused were not obliged to answer. The explanations of procedural rights, including the right to cross-examination and the right to testify in mitigation, were inadequate and irregular. The cumulative effect of these irregularities, together with the delay in forwarding the record for review, constituted a failure of justice and a breach of the accused's constitutional rights to a fair trial. Accordingly, the convictions and sentences were set aside under section 22 of the Superior Court Act.

Court Disposition

Convictions and sentences of both accused set aside due to gross procedural irregularities and failure of justice.

Orders

  • The convictions and sentences of Mokwena, Khashane Stephen and Mamabolo, Lina are set aside.
  • The accused are to be released from custody immediately if not already released.