A burglar got out of 24 months in jail, thanks to a magistrate's slip-up. In handing down a review judgement, a Grahamstown High Court judge decided to set aside a burglar's 24-month imprisonment sentence.
A burglar got out of 24 months in jail, thanks to a magistrate's slip-up. In handing down a review judgement, a Grahamstown High Court judge decided to set aside a burglar's 24-month imprisonment sentence.
This was because a Kenton-on-Sea magistrate failed to inform the man of his rights, during the trial.
Xolani Mbatsha was charged with housebreaking with intent to steal, and theft, in the Kenton-on-Sea Magistrate’s Court, according to court papers.
Mbatsha, who was not represented in the trial, pleaded guilty and was convicted and sentenced to 24 months' imprisonment.
In handing down judgment, Judge Judith Roberson said she was concerned that the prosecutor – instead of the magistrate – had explained the accused’s rights to him. It also seemed that the only confirmation that the accused had pleaded guilty was his statement, “Dis korrek”.
"I addressed a query to the magistrate accordingly," said Judge Roberson. "The magistrate replied that he had no reason to doubt what had been conveyed to him by the prosecutor and had no reason to believe that the accused was only confirming that he was pleading guilty."
Roberson asked for the opinion of Advocate Nickie Turner, from the office of the Director of Public Prosecutions, on what had occurred and its impact on Mbatsha's right to a fair trial.
The thrust of Turner’s opinion, according to Roberson, was that the magistrate’s failure to inform Mbatsha of his rights from the outset had tainted the proceedings.
Turner was of the view that the conviction and sentence should be set aside. "I agree with Advocate Turner that the irregularity which took place vitiated the whole trial. In effect, there was no trial at all."
Roberson ordered that the conviction and sentence be set aside and the accused is to be tried afresh before a different magistrate. Roberson said in the event of a conviction, regard should be given to the portion of the sentence which the accused had already served.
