S v Thage (SR12/18) [2018] ZAGPPHC 911 (5 April 2018)

S v Thage (SR12/18) [2018] ZAGPPHC 911 (5 April 2018)

The court found that, due to the malfunctioning of the recording equipment and the death of the presiding magistrate, the record of the proceedings could not be reconstructed. Only the recollections of the parties and the charge sheet were available, which were insufficient for a proper review. In the interests of justice, the conviction was set aside. The court clarified that this order does not amount to an acquittal and the prosecution may proceed afresh, requiring the accused to plead again to the charge.

Citation
[2018] ZAGPPHC 911
Parties
Applicant: The State; Respondent: Tysen Thabo Peter Thage
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 April 2018
Case Number
SR12/18
Procedural Posture
Criminal Review / Special Review
Outcome
Conviction set aside; matter to proceed afresh.
Judges
Tuchten
Legal Topics
Review Proceedings, Conviction Set Aside, Record Reconstruction, Theft
Criminal Law Review Proceedings Conviction Set Aside Record Reconstruction Theft

Case Brief

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Parties

The State

Applicant

Tysen Thabo Peter Thage

Respondent

Procedural Posture

Criminal Review / Special Review

Legal Issues

  1. 1 Whether the conviction should be set aside due to the absence of a record of proceedings.
  2. 2 Whether further efforts should be made to reconstruct the record or the conviction should be set aside in the interests of justice.

Ratio Decidendi

The court found that, due to the malfunctioning of the recording equipment and the death of the presiding magistrate, the record of the proceedings could not be reconstructed. Only the recollections of the parties and the charge sheet were available, which were insufficient for a proper review. In the interests of justice, the conviction was set aside. The court clarified that this order does not amount to an acquittal and the prosecution may proceed afresh, requiring the accused to plead again to the charge.

Court Disposition

Conviction set aside; matter to proceed afresh.

Orders

  • The conviction of Tysen Thabo Peter Thage on 5 January 2018 in the Cullinan magistrate's court, case A05/187, on a charge of theft of a five litre container of cooking oil is hereby set aside.
  • This order does not constitute an acquittal. The case against the accused must proceed and the accused must once again be required to plead to the charge.