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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA 86/2007

In the matter between:

THE STATE

and

THABO BONOVENTURE MOKWENA

REVIEW JUDGMENT

MOTSOMANE AJ:

[1] The matter was initially placed before Acting Judge Monama who raised a query about failure of the presiding officer to grant an undefended accused a chance to cross-examine the second witness, Ms Kepi.

[2] The presiding officer indicated that the witness testified on 14/02/07 and the matter was adjourned to 20/02/07 for cross-examination. That inadvertently trial was proceeded with on 20/02/07 without affording accused a chance to cross-examine the witness. She then suggested that since the matter is not in accordance with justice, the proceedings be set aside with an order for the matter to start de novo.

[3] In terms of Section 35(3)(i) of the Constitution Act 108 of 1996, accused have a right to a fair trial which includes the right to adduce and challenge the evidence. In this matter, the accused did not have a chance to challenge the evidence of Ms Kepi. This is a gross irregularity infringing the right of accused to a fair trial. See:- S v Khambule 1991 (2) SACR 277 (W); S v Ndlovu 2002 (2) SACR 325 (SCA).

[4] The accused has been sentenced to Correctional Supervision Sentence in terms of Section 276(1)(h) of Act 51 of 1977 for a period of twelve (12) months. This suggests that he has to date served three (3) months of the sentence. On this note an order of trial de novo will be prejudicial to the accused as he will have to stand trial and be sentenced again.

[5] The gross irregularities render the trial null and void ab initio and the proceedings are set aside.

R H MOTSOMANE

ACTING JUDGE OF THE HIGH COURT

I agree.

A A LANDMAN

JUDGE OF THE HIGH COURT

01 NOVEMBER 2007

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