S v Christiaan (CRIMINAL 53 of 2008)  NAHC 44 (27 May 2008);
CORAM: PARKER J. et ANGULA, A.J.
This matter has been placed before me for review in terms of section 116(3) of the Criminal Procedure Act. The accused was committed to the Regional Court for sentencing. The Regional Magistrate stated in his memorandum that having considered the record of proceedings in the Magistrates Court, he was of the opinion that the proceedings were not in accordance with justice, for the following reasons:
2. The previous convictions of the accused have not been properly proven before the Magistrate that referred the accused for sentence in terms of Section 116(1)(b) of the Criminal Procedure Act 57/77 (S v Kgomo 1978 (2) SA 946 T). Vide Annexure “E” previous convictions of accused which were not put to the accused by the public prosecutor after the conviction of the accused.
I have read and considered the record of the proceedings in the Magistrates Court and respectfully agree with the observations and conclusions of the Regional Magistrate that for those reasons the proceedings were not in accordance with justice. This court has in a number of review judgments emphasised the importance of the strict and proper application of the provisions of section 115 of the Criminal Procedure Act:
S v Sanders 1990 NR 348 (HC) at 351 B - C
Similarly: “On plea of not guilty s 115 of the Criminal Procedure Act requires the presiding officer to inform the accused that he can
make a statement setting out his defence to the charge and that such officer can also ask questions in order to determine which allegations, set out in the charge, are in issue. However, the presiding officer should also, at the same time, explain to the accused that he is not obliged to make any statement or to answer any questions. The accused is therefore given a choice either to remain silent or to explain. The choice is that of the accused and this must be fully explained to him. What is more, the presiding officer must then put it on record that the accused’s rights, and in particular his right to remain silent, were explained to him. (See further S v M en Andere 1979 (4) SA 1044 (B); S v Evans 1981 (4) SA 52 (C); and S v Daniëls en ‘n Ander 1983 (3) SA 275 (A).) In the present case no explanation as required by s 115 was given.”
See: S v Cachimbembo 1990 NR 290 at 292 C - E
The fact that the provisions of section 115 have been complied with must clearly appear from the record. It cannot be assumed. I am of the view that the multiple irregularities which took place in the Magistrates Court and as outlined by the learned Magistrate of the Regional Court, vitiates the proceedings.
In the result the conviction is set aside.