Topic 18: Review from proceedings in the Magistrate’s

Court
Automatic Review

 System of Automatic review of certain cases from the MC: system unique to SA
 Intended to protect the rights of an undefended accused against unjustified conviction
and sentences imposed by magistrates

What cases go on automatic review: s 302

 Depends of the length of service of the Magistrate

 7yrs + :
 Imprisonment of more than 6mths (s 302 (1)(a)(i))
 Fine exceeding R5000
 Less than 7yrs service:
 Imprisonment of more than 3mnths
 Fine exceeding R2500
 Note that the limit involving the amount of the fine is adjusted from time to time by
the Minister by notice in the Gazette

When not automatically reviewable

 Note that it is the sentence on each count that is the deciding factor
 Eg: 10 counts of theft each with a sentence under R2500 by a magistrate with less than
7yrs experience, is not automatically reviewable even though the total sentence is well
over the review limit
 Even when exceeds limit, no automatic review when the accused had a legal advisor
 Why: Advisor would prevent any major irregularity
 Automatic review is suspended is the accused lodges an appeal, but revived is the
appeal is abandoned (s 302(1)(b)) Falls away when the appeal is disposed of

Automatic Review Procedure

 Clerk of the court prepares the record and forwards it to the HC: s303
 Note time limits
 On receipt of the record, the case is then considered by a single judge of the HC:
s304(1)
 If the judge is satisfied that the proceedings were in accordance with justice, he
endorses the record accordingly and returns it to the MC
 If the judge is not satisfied that the proceedings were in accordance with justice, judge
refers the case back to the MC for reasons (in practice, usually points out the troubling
issue): s304(2)
 Magistrate then furnishes reasons
 On receipt of the reasons, case is then referred to 2 judges who treat the case then as
an appeal
 The 2 judges then consider the matter in chambers, decide the matter, and give
reasons

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  If the mater is urgent and if it is clear that some pr other aspect is not in accordance
with justice, and the accused would be prejudiced by the delay in getting the
magistrates reasons, reasons of the Magistrate can be skipped: s304(2)(a)
 HC can decide to have the matter argued: s304(3)
 HC has the power to hear evidence (s304(1)(b)) but this power is seldom exercised

Powers of the Review Court

 s304(2)(c):
i. Confirm, alter of quash conviction, and in the event of the conviction being
quashed where the accused was convicted on 1 of 2 or more alternative
charges, convict the accused on the alternative charge
ii. Confirm, reduce, alter or set aside the sentence or any order
iii. Set aside or correct the proceedings
iv. Generally give such judgment or impose such sentence or make such order as
the MC ought to have given, imposed or made on any matter which was before
it
v. Remit the case to the MC with instructions to deal with the case in a particular
manner
vi. Make any such order in regard to the suspension of the execution of any
sentence or bail, or, generally in regard to any matter or thing connected with
such person or the proceedings as to the court seems likely to promote the
ends of justice
 Note:
1. Review court decides matter on the basis of real and substantial justice, not necessarily
strict law – see S v Ndlovu
2. review court does not have the power to increase sentence – see Attorney General,
Venda v Maraga at 596 / S v Msindo
If the trial court has imposed an invalid sentence (ignored mandatory sentence) HC
imposes a proper sentence, which may have the effect of an increase
3. Review court may substitute conviction of more serious offence, but should give notice
to accused before doing so – see S v E

S v Ndlovu
 The Court held that the test to be applied by a court of review was not the same as that
which had to be applied by a court of appeal.
 During review proceedings, where the accused raised no question and alleged no
prejudice, the Court merely had to decide were in accordance with real and substantial
justice, not necessarily in accordance with strict law.
 It is possible for proceedings to be in accordance with real and substantial justice, even
though a rule of criminal procedure had not been followed.
 Further, the section dealing with automatic review, s304(1), did not require a Judge to
certify that the proceedings were in accordance with law, but that they were in
accordance with justice

S v Msindo

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  In terms of s304(2) of the CPA the reviewing Court does not have the power to
increase the sentence imposed by the Magistrate, which is a competent sentence,
and/or to refer the case back to the MC for that purpose
 Court noted that it is an anomaly of our law that a court of appeal has the power to
increase the imposed sentence while a reviewing court does not
 Court noted that it was in the interests of justice that this power be extended to
review courts, but noted that this was a matter for the Legislature to consider

Attorney General, Venda v Maraga at 596

 This case is only important for the above principle

 But if the sentence is incompetent (e.g. MC has ignored a mandatory sentence), HC can
impose its own proper sentence which may have the effect of an increase in sentence
 HC may substitute conviction of a more serious offence, but should give notice to the
accused before doing so

SvE

 Where a Court of appeal is convinced that the trial court, because of a wrong
finding of fact or a mistake of law, convicted the appellant of a less serious offence
than that which in terms of the indictment, he should have been convicted of, the
Court of appeal has the power to alter the conviction accordingly
 Court can either impose its own sentence, or refer the matter back to the trial
court for this purpose.

Special Review: s 304 (4)

 If Magistrate has imposed a sentence which is not automatically reviewable, or where

the regional magistrate has imposed any sentence, and it comes to the attention of the
HC or any judge thereof that proceedings were not in accordance with justice, the
judge or the HC has the same powers as if it were an automatic review under s302

Review Prior to Sentence: 304A

 At CL – no review before sentence: Courts do not like to deal with reviews/appeals

piecemeal
 S304A now allows for review before sentence in exceptional cases: Where Magistrate
or Regional Magistrate is of the view that an irregularity has take place

Execution of sentence pending review: s 307

 Transmission of case for review does not suspend execution of sentence, unless the HC
releases that accused on bail: s307

Review under s24 of the Supreme Court Act

 Review of proceedings in lower courts may be bought to the HC by way of s24 of the
SCA
 This process is initiated by an aggrieved accused: procedure is not done automatically,
and cannot be done informally

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Grounds for Review under s24

a) Absence of JD of part of the court

b) Interest in cause, bias, malice or corruption on the part of the presiding officer
c) Gross irregularities in proceedings
d) Admission of inadmissible or incompetent evidence or rejection of admissible or
competent evidence

 Procedure for such a review is set out in Rule 53 of the HC Rules

Matters for for review can sometimes also be dealt with as an appeal

 Where there are alleged irregularities which appear from the record itself these can
also be dealt with by way of an appeal
 Appropriate where there is also an attack on the soundness of the conviction or
sentence it is appropriate that this ‘combined’ route be followed where possible
 If the irregularities are not revealed on the record, then s24 review is the appropriate
course – see Lutchmia v the state

Lutchmia v State

Facts
 Matter was on review
 The applicant did not complain of any irregularities committed by the presiding officer
or by anyone else in the original trial
 The application is founded upon an immoral and illegal agreement concluded between
the applicant and one D – the agreement consisted of a conspiracy to fabricate facts
that would lead to the arrest of P – in short, a miscarriage of justice was plotted in
terms of which the applicant was required to plead guilty on instruction of D

Court

Court noted that this was a review in terms of s24(1)(c) – in order to succeed the applicant
must show an irregularity in the proceedings which led to his conviction and sentence
 The applicant relied on the applicant’s plea as the irregularity which ought to result in
the proceedings being set aside
 The words ‘in the proceedings’ in the subsection can be interpreted so as to warrant a
conclusion that all irregular or unlawful conduct not directly related to the actual
proceedings is covered by the sub-section
 The Court noted that the motive which induces a person to plead in a particular way to
a charge seems to be generally irrelevant unless that motivation springs, directly or
indirectly, from improper or illegal conduct or influence on the part of someone who
applied that conduct or used that influence to render the mind of the accused
ineffective
 That conduct or influence must therefore be such as to have reasonably influenced the
mind of an accused to such an extent that it cannot be said that, when pleading, the
utterance of his will is free, voluntary and unfettered expression of his own mind

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 Conclusion

Held that the applicant’s plea of guilty was voluntary

Automatic Review: Grounds wider than ‘true’ review under s24

 Automatic Review: grounds of inference wider than ‘true’ review under s24
 Automatic Review is a hybrid of appeal and true review

Some Distinctions between appeals and reviews

 There are time limits for lodging appeals, but reviews only have to be brought within a
reasonable time
 Disposal of a review does not preclude an appeal
 Once an appeal is disposed of, there can be no review (see R v Permanand) …but see
different approach in light of s 173 of the Constitution – see Hansen v Regional
magistrate and S v Sawman

R v Parmanand

 Where there is only an appeal before the court and it appears that there might be relief
open to the appellant by way of review, it would not be proper for the Court to dismiss
the appeal thus making it impossible for the appellant to get the relief thereafter by
way of review.
 Court should postpone it decision until the accused has had the opportunity to ring
review proceedings

But s173 of the Constitution may have changed that:

Hansen v Regional Magistrate

 The accused had been captured and sentenced, and his appeals dismissed.
 5 years later his co-accused was captured and sentenced to a far lighter sentence
 A review application was thus brought by the applicant on the basis of the disparity
between the sentences
 Court held that the perceived obstacle to the granting of such relief, posed by the fact
that the applicant had already exhausted all his legal remedies, was not
insurmountable
 S173 of the Constitution had broadened the inherent jurisdiction of the CC, SC and the
HC to protect and regulate their own process, and to develop the CL taking into account
the interests of justice
 In addition, the court found that the circumstances of the case were unusual in that the
circumstances giving rise to the injustice only arose after the accused had exhausted all
his available legal remedies
 The Court therefore held that it was under a duty to intervene

S v Sawman

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  The reviewing Court had set aside the sentence of an accused who had already
noted an appeal against the sentence
 The fact that the accused had been given leave to appeal had not been brought to
the attention of the reviewing judges
 When the matter came before the court on appeal, it enquired whether it had
jurisdiction, given that the matter had been finalised by way of review
 The Court held that it would not have jurisdiction under s20(4) of the SCA to hear
an appeal from a decision of the reviewing judges but that in terms of the
provisions of s173 of the Constitution procedures and the CL had to be extended to
ensure that justice was done.
 The court accordingly proceeded to consider the appeal against the sentence.

Review of decisions of other tribunals

 s24 of the SCA also makes provision for the review of decisions of other tribunals
 This is more properly with the scope of admin law