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South Africa Judgment

North Gauteng High Court, Pretoria

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

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Professional case brief

Research organized from the available case record

Source document

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

Applicant

Tysen Thabo Peter Thage

Respondent

03

Procedural history

  1. Posture

    Criminal Review / Special Review

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2018] ZAGPPHC 911

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Chabedi 2005 (1) SACR 415 (SCA)

Case cited

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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