S v Thage (SR12/18) [2018] ZAGPPHC 911 (5 April 2018)
- Citation
- [2018] ZAGPPHC 911
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Tuchten
- Case number
- SR12/18
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Tuchten
- Case number
- SR12/18
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
02
Material facts
Parties
The State
ApplicantTysen Thabo Peter Thage
Respondent03
Procedural history
Posture
Criminal Review / Special Review
04
Questions and positions
Legal issues
- 01
Whether the conviction should be set aside due to the absence of a record of proceedings.
- 02
Whether further efforts should be made to reconstruct the record or the conviction should be set aside in the interests of justice.
Party arguments
- Applicant
- The magistrate submitted the matter for special review, suggesting that the conviction be set aside due to the inability to reconstruct the record, as the recording machine malfunctioned and the presiding magistrate passed away without leaving any notes.
- Respondent
- The accused did not advance any formal argument but is affected by the absence of a record and the subsequent review process.
05
Court’s reasoning
Legal principles
- 01
S v Chabedi 2005 (1) SACR 415 (SCA)
Where the record of criminal proceedings cannot be reconstructed and is essential for the proper administration of justice, the conviction should be set aside.
- 02
Section 324 of the Criminal Procedure Act 51 of 1977
Setting aside a conviction in such circumstances does not constitute an acquittal and the accused may be required to plead again to the charge.
06
Ratio, limits and disposition
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.
Obiter and limits
- A reconstruction of the record would be time-consuming and unreliable, given the lack of notes and only the parties' recollections available.
- The interests of justice are best served by setting aside the conviction and allowing the matter to proceed anew.
Court disposition
Conviction set aside; matter to proceed afresh.
- 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.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO: SR12/18
In the matter between:
THE
STATE
and
TYSEN
THABO PETER
THAGE
Accused
JUDGMENT
Tuchten J:
1 On 5 January 2018, the accused was charged in Cullinan magistrate's court before magistrate Mr NV Mabunda with the theft on 3 January 2018 of a five litre container of cooking oil from a complainant described as Elias Harrebo Gudiso. He pleaded guilty and was convicted on his plea. The matter was then remanded to 11 January 2018 for record and sentence.
2 Magistrate Mabunda passed away on 10 January 2018. The matter was then postponed from time to time while efforts were made to transcribe the record of the proceedings. Unfortunately that cannot be done as the recording machine had malfunctioned. The late Mr Mabunda left no notes which can be of any assistance.
3 The case has been sent on special review by the Magistrate of Cullinan.
4 The question is whether additional efforts should be made to reconstruct the record or whether, as the Magistrate suggests, the conviction should be set aside. In my view the interests of justice favour the latter course. A reconstruction will be more time consuming and only the recollections of the parties and the charge sheet are available for that purpose.
5 I therefore make the following order:
1 The conviction of Tysen Thabo Peter Thage on 5 January2018 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.
2 The above order will not constitute an acquittal. The case against the accused must proceed and the accused must once again be required to plead to the charge.
NB Tuchten
Judge of the High Court
5 April 2018
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