S v Thole (R251/2018) [2018] ZAFSHC 177 (28 November 2018)

S v Thole (R251/2018) [2018] ZAFSHC 177 (28 November 2018)

The reviewing court found that the magistrate failed to properly conduct the enquiry required by section 170(2) of the Criminal Procedure Act. The accused was not adequately afforded the opportunity to explain his absence, and the implications of the evidentiary burden were not properly explained. The proceedings were handled in a slapdash manner, resulting in a serious procedural irregularity. As a result, both the conviction and sentence were not in accordance with justice and had to be set aside.

Citation
[2018] ZAFSHC 177
Parties
Applicant: THE STATE; Respondent: BOKANG THOLE
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2018
Case Number
R251/2018
Procedural Posture
Special Review / Review of Conviction and Sentence
Outcome
Conviction and sentence set aside.
Judges
Mhlambi, Molitsoane
Legal Topics
Failure to Appear, Criminal Procedure Act Section 170, Burden of Proof, Summary Enquiry, Procedural Irregularity
Criminal Law Failure to Appear Criminal Procedure Act Section 170 Burden of Proof Summary Enquiry Procedural Irregularity

Case Brief

Summary, issues, holding and outcome

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Parties

THE STATE

Applicant

BOKANG THOLE

Respondent

Procedural Posture

Special Review / Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate correctly applied section 170(1) and (2) of the Criminal Procedure Act in convicting the accused for failure to appear.
  2. 2 Whether the accused was afforded a fair trial and the opportunity to explain his absence.
  3. 3 Whether the failure to specify the section contravened constitutes an irregularity justifying review.

Ratio Decidendi

The reviewing court found that the magistrate failed to properly conduct the enquiry required by section 170(2) of the Criminal Procedure Act. The accused was not adequately afforded the opportunity to explain his absence, and the implications of the evidentiary burden were not properly explained. The proceedings were handled in a slapdash manner, resulting in a serious procedural irregularity. As a result, both the conviction and sentence were not in accordance with justice and had to be set aside.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.