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MJ Vermeulen Inc. v Engelbrecht and Another (21562/2021) [2022] ZAWCHC 250 (30 November 2022)
High Court review of a magistrate’s trial judgment was upheld after gross irregularities, refusal of expert evidence, and denial of oral argument.
S v Kuzana (A442/20; 05/20) [2020] ZANCHC 49 (8 July 2020)
The court found that the presiding magistrate failed to comply with section 274(2) of the Criminal Procedure Act by not affording the prosecutor and accused's legal representative an opportunity to address the court on sentencing. Furthermore, the magistrate did not determine the nature and extent of the correctional supervision sentence, instead referring only to an attached report. This constitutes a procedural irregularity rendering the proceedings not in accordance with justice. The court also held that the wording used in sentencing was not ambiguous and did not create confusion, as the…
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S v Thetha (CA&R165/2017) [2017] ZAECGHC 73; 2017 (2) SACR 363 (ECG) (9 June 2017)
The court found that the Magistrate failed to comply with section 274 of the Criminal Procedure Act by not properly affording the accused a clear opportunity to address the court on sentence. The question posed to the accused was ambiguous and did not specifically invite submissions on the appropriate sentence. The accused, being unrepresented, could not have insisted on his right to address the court. However, the accused's right to legal representation was adequately explained before trial, and he elected to conduct his own defence after his legal aid attorney withdrew. The conviction was f…
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S v Green (R113/2016) [2016] ZAFSHC 137 (18 August 2016)
The court found that the magistrate's failure to allow the accused's legal representative to address the court before conviction constituted a gross irregularity. Although section 304A generally does not apply to cases where the accused is legally represented, the nature of the irregularity in this case was so severe that the proceedings could not stand. The court clarified that section 304A, not section 304(4), was the applicable provision since the accused had been convicted but not yet sentenced. The conviction was therefore set aside, and the matter was ordered to commence de novo before…
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Philips v S (A130/2011) [2011] ZAWCHC 105; 2012 (1) SACR 466 (WCC) (3 June 2011)
The magistrate's failure to allow the appellant's legal representative to address the court on the probation and correctional officer reports before sentencing constituted a gross irregularity and resulted in an unfair hearing. This omission violated the appellant's constitutional right to a fair trial and effective participation in the proceedings. The recommendations in the reports differed, and the appellant's counsel should have been afforded an opportunity to persuade the court on the appropriate sentence. Given that the appellant had already undergone a thirteen-week rehabilitation prog…
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Phillips v S (A130/11) [2011] ZAWCHC 251 (3 June 2011)
The magistrate's failure to allow the appellant's counsel to address the court on the probation and correctional officer reports before sentencing constituted a gross irregularity and a violation of the accused's constitutional right to a fair trial. The right to address the court is not a mere formality but a fundamental aspect of fair trial proceedings. The irregularity resulted in the magistrate not considering all relevant factors pertaining to sentence. Given that the appellant had already undergone a rehabilitation programme and served his sentence, further punishment was unwarranted. T…
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S v Moeketsi (992/2004) [2004] ZAFSHC 81 (29 July 2004)
The court found that the refusal to grant a further postponement effectively deprived the accused of the opportunity to address the court before judgment. The accused did not voluntarily abandon his right to address the court; rather, he was placed in a position where he could not exercise that right due to circumstances beyond his control, including the withdrawal of his attorney and his own detention. The court distinguished the present case from S v Vermaas, noting that in Vermaas the accused deliberately chose not to address the court, whereas in this matter the accused was not afforded a…
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