A Paarl man has been released from custody after his conviction and sentencing for stealing libido tablets from a Dis-Chem store last year was set aside.
Josquin September appealed against his conviction and sentencing on the grounds that the presiding magistrate at the Paarl Magistrate’s Court “committed a gross irregularity” by failing to explain his right to legal representation before he was asked to plead to the charge.
This was found to be true when the transcribed version of the matter was listened to by Western Cape High Court Judge Robert Henney.
September was arrested on July 26 last year on a charge of theft of a pack of Erect Capsules to the value of R109.95 from the retail pharmacy.
He pleaded guilty to the charge against him and the magistrate sentenced him to a fine of R1000 or 50 days imprisonment.
Before pleading, in the transcribed version of court proceedings, the magistrate was recorded saying: “Okay, sir the State indicated if you intend to plead guilty today, this matter can be disposed of and we will follow a short procedure, but then you will have to do it in person. If you intend to plead not guilty, however, which you are totally entitled to do, this matter will have to be postponed for trial, and everything will be explained to you further.”
However, according to the magistrate’s handwritten notes, September understood his rights if he pleaded guilty. The notes of the magistrate reflected: “Acc (accused) rights with regard to legal representation explained – he understands – conducts own defence + wants to plead guilty today (sic).”
Judge Henney found that the handwritten version was clearly at variance with the transcribed version as recorded by the magistrate, which reflects not only that the applicant’s right to legal representation was explained, but that he elected to proceed in person.
“According to September the mechanical recording is a true reflection of what had transpired on the day of the said proceedings. He followed the magistrate’s advice, who decided on the so-called ‘short procedure’ and he decided that he would proceed without any legal representation.
He was never given an opportunity to address the magistrate, except to address the court in mitigation of sentence. If the matter had been dealt with in terms of Section 112(1) (b) of the CPA, the magistrate would have realised that September had a defence against the allegations against him.
“September was not aware that following the ‘short procedure’ would result in him having a criminal record,” judgment read. Through this it became apparent that September’s “right to legal representation was not explained” and this “amounts to a gross irregularity that impacts on the applicant’s right to a fair trial”.
Judge Henney said he was inclined to agree that there was a gross irregularity in the matter and set aside the conviction and sentencing.
He further ordered that the conviction and sentencing of September not be reflected on Register of Previous Convictions, by the Criminal Record Centre: SAPS in Pretoria and if the State were “desirous to do so”, they may institute fresh proceedings against September.
The director of public prosecutions did not oppose the review saying they would abide with the decision of the court.
Cape Times