A Cape Town man who was convicted of stealing erection pills and sentenced to a fine of R1,000 or 50 days imprisonment, had his conviction set aside after it was found that the magistrate failed to explain his right to legal representation.
According to court papers, Josquin September was arrested on July 22, 2022, at Paarl Mall on a charge of theft for taking a pack of Erect Capsules worth R109.95 from Dischem Pharmacy.
He pleaded guilty to the charge of theft and the magistrate sentenced him to a fine of R1,000 or 50 days imprisonment.
In the transcribed version, the magistrate said to September:
“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, on the magistrate’s handwritten version the following was stated:
‘’Accused rights with regard to legal representation explained — he understands — conducts own defence plus wants to plead guilty today.’’
The court noted the inconstancies on the two versions.
September said he followed the magistrate’s advice and proceeded without any legal representation. He also said he was not aware that following the ‘short procedure’ would result in him having a criminal record.
During the appeal, it was argued that failure to inform an accused of his or her right to legal representation amounts to a gross irregularity that impacts on the applicant’s right to a fair trial.
Judge Robert Henney said he was inclined to agree with September that there was a gross irregularity in the proceedings in the Magistrate’s Court.
Henney set aside the conviction and ordered that September be removed from the register of previous convictions.
He said the Director of Public Prosecutions or a prosecutor, may institute fresh proceedings against September if they have a desire to do so.