S v Pheka (263/2018) [2019] ZANWHC 4 (6 February 2019)

S v Pheka (263/2018) [2019] ZANWHC 4 (6 February 2019)

The court found that the procedure followed during the trial-within-a-trial was fundamentally flawed. The defence led the evidence of state witnesses, which is contrary to established criminal procedure and placed an improper onus on the accused. Furthermore, the confession was read into the record before its admissibility was determined, infringing the accused's fair trial rights. These irregularities amounted to a gross misdirection by the presiding magistrate. Recognizing the prejudice caused, the court held that the proceedings must be set aside and the matter remitted for a new trial before a differently constituted court.

Citation
[2019] ZANWHC 4
Parties
Applicant: The State; Respondent: Richard Pheka
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
6 February 2019
Case Number
263/2018
Procedural Posture
Criminal Review / Special Review Under Section 304 of the Criminal Procedure Act
Outcome
Proceedings set aside and matter remitted for trial de novo before a different magistrate.
Judges
R.D Hendricks, T.J Djaje
Legal Topics
Criminal Procedure, Confession Admissibility, Fair Trial Rights, Trial Within Trial
Criminal Law Criminal Procedure Confession Admissibility Fair Trial Rights Trial Within Trial

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Richard Pheka

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304 of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the procedure followed during the trial-within-a-trial was irregular and prejudicial to the accused.
  2. 2 Whether the accused's fair trial rights were infringed by the defence leading state witnesses and the premature reading of the confession into the record.
  3. 3 Whether the proceedings should be set aside and the matter remitted for a new trial.

Ratio Decidendi

The court found that the procedure followed during the trial-within-a-trial was fundamentally flawed. The defence led the evidence of state witnesses, which is contrary to established criminal procedure and placed an improper onus on the accused. Furthermore, the confession was read into the record before its admissibility was determined, infringing the accused's fair trial rights. These irregularities amounted to a gross misdirection by the presiding magistrate. Recognizing the prejudice caused, the court held that the proceedings must be set aside and the matter remitted for a new trial before a differently constituted court.

Court Disposition

Proceedings set aside and matter remitted for trial de novo before a different magistrate.

Orders

  • The proceedings under case number 263/2018 held at Atamelang are reviewed and set aside in their entirety.
  • The matter is remitted to the Magistrate Court, Atamelang for a trial de novo before a magistrate other than Mr. S Ndade Maphango.