South Africa: North West High Court, Mafikeng

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S v Joubert (Review) (03/2023) [2023] ZANWHC 180 (2 October 2023)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

HIGH COURT REFERENCE NUMBER: 03/2023

MAGISTRATES’ SERIAL NUMBER: 02/2023

MAGISTRATE’S CASE NUMBER: R/CC07/2021

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: YES

Circulate to Regional Magistrates: YES

In the review matter between:

THE STATE

and

LYNETTE MARTHA JOUBERT Accused

CORAM: DJAJE AJP; PETERSEN ADJP

DATE PLACED BEFORE PETERSEN ADJP: 12 SEPTEMBER 2023

DATE OF JUDGMENT: 02 OCTOBER 2023

Summary: Criminal law and procedure – failure to comply with the order of Review Court – proceedings before first Regional Magistrate set aside on review and matter ordered to proceed de novo – second Regional Magistrate misled by defence counsel as to true order of the Review Court – public prosecutor complicit in perpetuating incorrect contention of defence counsel on the order of the Review Court – proceedings before second Regional Magistrate set aside on basis of gross irregularity – matter to commence de novo before a differently constituted court which excludes the two Regional Magistrates who have dealt with the matter and the public prosecutors previously assigned to deal with the matter.

ORDER

1. The proceedings in this matter are not in accordance with justice.

2. The conviction is set aside.

3. The matter is referred back to the Regional Court to commence de novo in its entirety, before a differently constituted court, which court should exclude all the Regional Magistrates and public prosecutors, who have been complicit in the irregularities inherent in this review and the previous review.

4. A copy of the judgment must be brought to the attention to the Acting Regional Court President by the Registrar of this Honourable Court, to ensure compliance with paragraph 3 of this order.

5. A copy of the judgment must also be brought to the attention of the Director of Public Prosecutions, North West Province.

REVIEW JUDGMENT

PETERSEN ADJP

Introduction

[1] This matter was placed before me as a special review in terms of section 304A(a) of the Criminal Procedure Act, Act 51 of 1977 (“the CPA”) on 12 September 2023. Section 304A(a) provides that:

“(a) If a magistrate or regional magistrate after conviction but before sentence is of the opinion that the proceedings in respect of which he brought in a conviction are not in accordance with justice, or that doubt exists whether the proceedings are in accordance with justice, he shall, without sentencing the accused, record the reasons for his opinion and transmit them, together with the record of the proceedings, to the registrar of the provincial division having jurisdiction, and such registrar shall, as soon as is practicable, lay the same for review in chambers before a judge, who shall have the same powers in respect of such proceedings as if the record thereof had been laid before him in terms of section 303.”

[2] The matter was transmitted by the presiding Regional Magistrate (Mr OJ Mothibe), sitting at Mmabatho with a covering letter dated 22 August 2023, which reads verbatim as follows:

“Request for a review proceedings in terms of Section 304A(a) of the Criminal Procedure Act 51 of 1977 as amended.

The Registrar of the High Court, North West Provincial Division, is kindly requested to lay the attached record of proceedings before the Honourable Justices in chambers for review in terms of Section 304A (a) of the Criminal Procedure Act 51 of 1977 as amended, together with the following remarks by myself as the Regional Magistrate who presided over the case:

The case was referred back to this Court by the High Court to start de novo before another Regional Magistrate. When the matter appeared before me the accused’s Advocate Mrs Swigelaar[1] proceeded to read the statement in terms of Section 112(2) into the record before the prosecutor could put the charge to the accused and without the accused pleading to the charge first.

In her statement as read out in court the accused referred to a plea of guilty tendered before my colleague, Regional Magistrate Makabanyane on 6 June 2016 but only on 46 of the 64 charges specified in the charge sheet without specifying which 46 charges she was pleading to.

The court then convicted the accused again before she could plead to the charge as required by law. The accused was also convicted on 46 of the original charges without specifying which 46 charges are those.

Later during sentencing proceedings the defence counsel applied for the amendment of the statement in terms of section 112(2) to read 64 counts instead of 46 counts. She also requested the court to pronounce accused’s guilt on 64 counts as amended. The court also acceded to the request and pronoun ed the conviction on 64 counts.

At that stage the prosecutor brought it to the attention of the court that the matter was ordered by the High Court to start de novo and not remitted in terms of section 312 as previously submitted.

It then became apparent to me that the proceedings may not be in accordance with justice due to the following reasons:

· The trial should have started de novo and thus the state should have put the charge to the accused with accused pleading accordingly to the charge.

· The court should not have convicted the accused on the basis of her previous plea tendered before my colleague in 2016.

· Amendment of the accused’s guilt on 64 charges should not have been allowed after conviction.

It is these reasons that I request the honourable Justices to consider setting aside the proceedings in this case on account of a possible injustice…”

(sic)

The review under High Court Reference Number 04/2017 and Magistrates Case Number RC 150/16 before Honourable Justice Djaje J (as she then was) and Gutta J

[3] In a previous review judgment in respect of the same accused and the same lis, before Honourable Justices, Djaje J (as she then was) and Gutta J, reported on SAFLII as S v Joubert (04/2017, RC150/16) [2018] ZANWHC 3 (8 March 2018), the reason for submitting the matter on review was recorded verbatim as follows:

“[1] This matter was sent on special review on 11 December 2017 by the Attorneys of the accused with the following request:

‘1. bring it to the notice of this Honourable Court that the proceedings before Regional Magistrate B M Makabanyane (“the first respondent”) in the Regional Court for the Regional Division of North West held in Lichtenburg in the matter of the State versus Lynette Martha Joubert, case number RC/150/2016 in which a sentence of fifteen (15) years’ imprisonment for a conviction of a charge of theft (64) counts brought out against the Applicant by the First Respondent on 6 June 2017 has been imposed on the Applicant by the First Respondent on 27 June 2017 were not in accordance with justice as contemplated in section 304 (4) of the Criminal Procedure Act, number 51 of 1977 (“the Criminal Procedure Act”), in that the First Respondent acted irregularly in immediately returning a verdict of guilty without questioning the Applicant pursuant to the provisions of section 112(1)(b) of the Criminal Procedure Act to satisfy himself that the Applicant is guilty of the crime to which she pleaded guilty and/or enquiring from the Applicant’s legal advisor whether the Applicant has made a statement as contemplated in section 112 (2) of the Criminal Procedure Act; and

2. apply this Honourable Court to:

2.1 set the conviction and imposed sentence aside on review on the ground that the provisions of section 112 (1) (b) and/or (2) of the Criminal Procedure Act were not complied with by the First Respondent;

2.2 remit the case pursuant to the provisions of section 312 of the Criminal Procedure Act to another Regional Magistrate; and

2.3 direct the latter Regional Magistrate to comply with the provisions of section 112(1)(b) of the Criminal Procedure Act.”

(emphasis added - sic)

[4] The relief sought on review was predicated on section 312 of the CPA, which provides as follows:

“312 Review or appeal and failure to comply with subsection (1)(b) or (2) of section 112

(1) Where a conviction and sentence under section 112 are set aside on review or appeal on the ground that any provision of subsection (1)(b) or subsection (2) of that section was not complied with, or on the ground that the provisions of section 113 should have been applied, the court in question shall remit the case to the court by which the sentence was imposed and direct that court to comply with the provision in question or to act in terms of section 113, as the case may be.

(2) When the provision referred to in subsection (1) is complied with and the judicial officer is after such compliance not satisfied as is required by section 112(1)(b) or 112(2), he shall enter a plea of not guilty whereupon the provisions of section 113 shall apply with reference to the matter.”

(emphasis added)

[5] The basis of the review was set out as follows at paragraphs 7 to 10:

“[7] It is clear from the record of proceedings that immediately after the accused pleaded guilty she was not questioned or a statement read into the record in terms of section 112 (2) of the Criminal Procedure Act. The Regional Magistrate proceeded to convict immediately after the accused pleaded guilty. It was on this basis that the matter has been sent on special review by the Attorney.

[8] Section 112 (1) (b) of the Criminal Procedure Act 51 of 1977 provides that:

“112.

(1) Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea-

(b) the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.”

[9] Section 112 (2) of the Criminal Procedure Act provides that:

“(2) If an accused or his legal adviser hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may, in lieu of questioning the accused under subsection (1) (b), convict the accused on the strength of such statement and sentence him as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement.

[10] Section 113 of the Criminal Procedure Act provides that:

“113.

(1) If the court at any stage of the proceedings under section 112 (1) (a) or (b) or 0b4b0b">112 (2) and before sentence is passed is in doubt whether the accused is in law guilty of the offence to which he or she has pleaded guilty or if it is alleged or appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge or if the court is of the opinion for any other reason that the accused’s plea of guilty should not stand, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution: Provided that any allegation, other than an allegation referred to above, admitted by the accused up to the stage at which the court records a plea of not guilty, shall stand as proof in any court of such allegation.

(2) If the court records a plea of not guilty under subsection (1) before any evidence has been led, the prosecution shall proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise.”

[6] As a result of non-compliance with the provisions of section 112(2) read with section 112(1)(b) of the CPA, the review court concluded as follows at paragraphs 11 and 12:

“[11] After pleading guilty to theft the accused was not questioned by the Court nor was a statement in terms of section 112(2) of the Criminal Procedure Act explaining the admission of the elements of the offence handed in by his legal representative. The purpose for giving the accused the opportunity to answer and explain which elements of the offence are admitted is for the court to be satisfied that there is no defence raised by the accused in explaining how the offence was committed. As stated in section 113 of the Criminal Procedure Act if the Court finds that there is a defence raised in the explanation by the accused then a plea of not guilty would be entered.

[12] The wording of section 112 (1)(b) of the Criminal Procedure Act is peremptory and when an accused pleads guilty the presiding officer should invoke its provisions. Failure to invoke the provisions of section 112(1)(b) or 112(2) of the Criminal Procedure Act when an accused has pleaded guilty will result in an irregularity as it is not clear whether the accused admits all the elements of the offence or could raise a defence explaining how the offence was committed. It is clear in this matter that the Regional Magistrate has not invoked the provisions of section 112 (1) (b) of 112(2) of the Criminal Procedure Act despite the accused having pleaded guilty. It is my view that failure to do so renders the proceedings to be not in accordance with justice and should be set aside and the matter be referred to another Regional Magistrate to start de novo.”

(my emphasis)

[7] The following order was consequently made:

“[13] Consequently, the following order is made:

1. The proceedings in this matter are not in accordance with justice;

2. The conviction and sentence are set aside;

3. The matter is referred to the Regional Court to start de novo before another Regional Magistrate.”

The “de novo” proceedings before Regional Magistrate Mothibi (the present review)

[8] On 17 January 2023 the accused appeared before Regional Magistrate Mothibi. Having regard to the reasons of the Regional Magistrate for submitting the matter on special review, it is apposite to have regard to the following relevant extract from the transcribed record:

“MS SUTTELAR[2] ADDRESSES THE COURT: Your Worship this matter was a postponed for today for plea and trial and the state is ready to proceed.

COURT: Yes. Please be seated, ma’am. Ms SUTTELAR.

MS SUTTELAR ADDRESSES COURT: As the Court pleases Your Worship. Your Worship I confirm my appearance on behalf of the accused. Your Worship the position in this matter was remitted in terms of the provisions of Section 112 of the Criminal Procedure Act by, to this Court for the compliance with the provisions of Section 112(1)(b) or 112(2) after the convictions and sentence, imposed sentence on the accused was set aside on a special review by the High Court the North West Division of the High Court of South Africa.

M'Lord, ag Your Worship apologise. I have prepared the accused statement in terms of Section 112(2) read with Section 312 of the Criminal Procedure Act 51 of 1977. And I beg leaf to read it into the record.

COURT: Can we proceed up to the charge please.

PROSECUTOR: May I put the charge, Your Worship?

MS SUTTELAR: Your Worship it is, I respectfully submit …[intervenes]

COURT: Or maybe because it was already, already the accused had already pleaded.

MS SUTTELAR: Ja.

COURT: It was only remitted for the proper processes.

PROSECUTOR: Ja it is not necessary.

MS SUTTELAR: Thank you. Your Worship may I proceed?

COURT: Yes, you may.

MS SUTTELAR: As the Court pleases.

COURT: Prosecutor, just wait first. Prosecutor?

PROSECUTOR: Your Worship.

COURT: You were saying?

PROSECUTOR: No. I withdraw what I said Your Worship.

Court: You have no address? Okay.

MS SUTTELAR: As the Court pleases Your Worship. The accused statement in terms of Section 112(2) read with Section 312 of the Criminal Procedure Act 51 of 1997;

“I the undersigned Lynette Martha Joubert, a major female born on, sorry, 10 August 1963 in the Republic of South Africa, with our identity number 6[...] presently residing at 3[...] 1[...]^th Avenue, Lichtenburg Northwest and employed at Tiger Eye Auctioneers, 4[...] C[...] Street, Mahikeng, North West . . .[intervenes]”

COURT: Just a moment please.

MS SUTTELAR:

“1, Confirm …[intervenes]”

COURT: Before that Ma’am. Does your client follow the proceedings in English?

MS SUTTELAR: Yes, yes.

COURT: Okay, you may proceed then.

MS SUTTELAR: As the Court please my, Your Worship.

I also confirmed that she had the opportunity to read the statement.

COURT: Yes.

MS SUTTELAR: And, and to sign it. Your Worship may I hand to you, a unsigned copy for you to follow.

COURT: Yes.

MS SUTTELAR: I apologize for not doing it earlier.

“1. I confirmed that I pleaded on 6 June 2017 in this honourable court before Regional Court magistrate BM Makhabane, Regional Court magistrate Makhabane on the case number RC150/2016, guilty on the alternative charge of 46 counts of theft, read with Section 51(2)(A) of the Criminal Law Amendment Act 105 of 1997. Totally, totally R596 953.08.

1.2 I pleaded freely and voluntarily whilst being in my sound and sober senses and without having been unduly influenced guilty to the counts refer in sub paragraph 1.1 Supra.

1.3 After the state had accepted my plea of guilty regional court magistrate Makhabane, Makhambayane summarily, without questioning me, pursuant to the provisions of Section 112(1)(b) of the Criminal Procedure Act 51 of 1977 herein after referred to the to the Criminal Procedure Act. To satisfy himself that I was guilty of the crimes to which I pleaded guilty and or inquiring from my legal representative whether I had made a statement as contemplated in Section 112(2) of the Criminal Procedure Act returned a verdict of guilty against me.

1.4 Regional court magistrate Makhambayane sentenced me on 27 June 2017 …[intervenes]

COURT: Sorry. Just before proceeding can I just borrow your Criminal Procedure Act? Yes proceed Ma’am. Thank you.

MS SUTTELAR: As the Court pleases.

“Sentenced me on 27 June 2017 to 15 years imprisonment in respect of the convictions brought out against me.

1.5 I commenced to serve the afore said sentence immediately after the imposition thereof on me.

1.6 I lodged on 11 December 2017 a special review application in terms of Section 304 of the Criminal Procedure Act in the Northwest Division of the High Court of South Africa, held at Mafikeng under case number 4/2017 against the convictions and sentence.

1.7 On 8 March 2018 the convictions and imposed sentence were set aside on the review by the honourable Mr Justice Koega and Madam Justice Jadji after it had been found not to be in accordance with justice as contemplated in Section 304(4) of the Criminal Procedure Act and the matter was in terms of Section 312(1) one. 312(1) of the Criminal Procedure Act, remitted to this Honourable Court for it to comply with the provisions of Section 112(1)(b) of the Criminal Procedure Act.

1.8 I was on 22 March 2018, after having already served 267 days, nearly nine months of the sentence of 15 years imprisonment on, imposed on me by regional magistrate Makhambayane released from prison; and

1.9 On 30 August 2021, more than two years and four months after the setting aside, on 8 March 2018 of the convictions and the imposed sentence of 15 years imprisonment a notice to secure my attendance at court was served in terms of the provisions of Section 340 of the Criminal Procedure Act on me.

2. I admit that I had upon and during the dates mentioned in column three of Schedule A to the charge sheet and at or near Lichtenburg in the Regional Division of Northwest unlawfully and intentionally stolen the amounts mentioned in column four of Schedule 8 to the charge sheet totalling R596 593.08 being the property or in the lawful possession of the Sebotla local municipality in that I had failed to pay the afore said amounts which were paid by the persons mentioned in column two of Schedule 8 to the charge sheet to me to cause their motor vehicles to be licensed with the Sebotla local municipality to the Sebotla local municipality and intentionally appropriated the afore said amount for my own use and thereby deprived the Sebotla local municipality permanently thereof, and

2.2 I had by acting and in the manner as set out in subparagraph 2.1, supra, committed to offences of theft and that I am consequently guilty of the 46 counts of theft to which I pleaded guilty on 6 June 2017.”

Your Worship the statement was signed today being 17 January 2023 here at Mafikeng by the accused person, and I beg leave, and she have also initial on page one thereof, her residential address to read 3[...] 1[...]^th Avenue Lichtenburg Northwest instead of 2[...] [...] S[...] Street, Lichtenburg Northwest. As the court pleases Your Worship I beg leave to hand to Your’ Lordship the statement.

COURT: Yes. Before we proceed, just a few concerning issues here. Prosecutor the charges is it still the same as on the previous case of 2016. Nothing has changed.

PROSECUTOR: It is Your Worship.

COURT: Yes. And since the matter was remitted, Mrs Suttelar and you proceed on the basis that it is the same matter should it not then be referred to as case number, remitted case number RC150/2016. Because now we have a new case number and it will then be a problem if the accused were to plead without the charges …[intervenes]

MS SUTTELAR: Yes I …

COURT: … being put as it …[intervenes]

MS SUTTELAR: I appreciate what Your Lordship said.

COURT: Yes.

MS SUTTELAR: It was in 2007 a different case number.

COURT: Yes as that you referred today.

MS SUTTELAR: And that case number was.

COURT: Remitted.

MS SUTTELAR: Ja. The convictions and sentence …[intervenes]

COURT: Yes.

MS SUTTELAR: That were brought out under that case number were set aside on, on the review.

COURT: Yes.

MS SUTTELAR: So when it was instituted a new case number has been allocated. I was not at that stage involved in the matter Your Worship, but I do not, I submit that I do not think it will be a problem if we carry on on the new case number or alternatively amend it to be the old case number.

COURT: Yes I am, I am just for the sake of clarity. If it is a new case number perhaps then the accused should plead again, the charge should be put again and the accused plead because remember, we are proceedings on the basis that it is the same case it was just remitted. Accused already pleaded then, but now we having a new case number which then makes it a totally different case. Which means then that the prosecutor must still put the charge and accused plead to the charge.

MS SUTTELAR: Your Worship can, can we not, …[intervenes]

COURT: I am not certain I am just …[intervenes]

MS SUTTELAR: Can, can we not amend the present case number to be the old case number?

COURT: I do not have a problem with that. I am just saying if it is a, we working on the basis that it is a remitted case, then it must be the same case.

MS SUTTELAR: As the Court pleases, Your Worship.

COURT: What is your take on that prosecutor? Then we can be, perhaps even amend it or at least referred to as remitted case number 150/2016.

PROSECUTOR: Your Worship I, I do not have a problem with, in fact, like you say, like the Court is saying, if it is, it is proceeding on this current case number, it will mean that she must, I must put the charge to …[intervenes]

COURT: Yes.

PROSECUTOR: She must plead. I do not have a problem with that and on the other hand, again, I do not have a problem if it is proceeded with the remitted case number.

COURT: Yes, because she would have pleaded already in that case.

PROSECUTOR: Yes.

COURT: Then Ms Suttelar would be following the proper process.

PROSECUTOR: Yes, yes.

COURT: But if it is a new case, number, the proper process would be put the charge.

PROSECUTOR: Yes.

COURT: Let the accused plead. So then maybe the record can just reflect that this case then from now henceforth will be referred to as remitted case number.

PROSECUTOR: Okay.

COURT: RC150/2016.

PROSECUTOR: RC?

COURT: 150/2016.

PROSECUTOR: Okay, Court pleases.

COURT: That is what is referred to here in the plea.

PROSECUTOR: As the Court pleases.

MS SUTTELAR: As the Court pleases, thank you for that Your Worship.

COURT: Yes.

MS SUTTELAR: Is there any other issues that Your Worship would like us to address the court on?

COURT: No, thank you. Prosecutor can address the court then on the plea.

…MS SUTTELAR: As the Court pleases.

PROSECUTOR: Your Worship the state …[intervenes]

COURT: Oh, before then sorry, the statement is admitted to the record and marked EXIHIT A.

PROSECUTOR ADDRESS COURT: Court pleases. The the state accept the plea on, on that Your Worship.

COURT: The accused is appearing today represented by Advocate Suttelar in this case, and she still pleaded guilty to the charges she did previously before my colleague Mr Makhambayane. The accused council also read a statement in terms of Section 112(2) read with the provisions of Section 312 of the Act 51 of 1977 into the record, the accused, do you confirm Ma’am the correctness of the statement?

ACCUSED: Yes.

COURT: Yes the accused confirm the correctness of the statement and the state has also accepted the statement and as having nothing also to add to the merits.

The statement of the accused is received by the Court and marked EXHIBIT A. And having perused EXHIBIT A the Court is satisfied that the accused admits all the elements of the offence as contained in the charge sheet. The accused is therefore found guilty as charged.

MS SUTTELAR: As the Court pleases Your Worship.

PROSECUTOR: Your Worship the state is not in possession of SAPS 69, but it proofs no previous conviction.

COURT: Accused is found guilty as charged on all the 46 counts, rather…”

(emphasis added)

Discussion

[9] The central issue in this review application, is the interpretation to be accorded to the order in the previous review judgment. The previous court order, which Ms Zwiegelaar for the accused referred to in the proceedings in the court a quo was clearly misconstrued. The substance of the order was incorrectly relayed to the Regional Magistrate and the Judges of review were wrongly identified as “the honourable Mr Justice Koega and Madam Justice Jadji.” Judge Gura (misspelt Koega) was not part of the panel of Judges, which included Judges Djaje and Gutta. The Regional Magistrate, Mr Mothibi accepted the ipse dixit of Ms Zwiegelaar in circumstances where it was incumbent on him to call at the very least for the order of the review court. The public prosecutor acquiesced in this state of affairs and perpetuated same, only to realise the gross irregularity in the proceedings at a very late stage when sentencing was imminent.

[10] In HLB International (South Africa) v MWRK Accountants and Consultants (2021) [2022] ZASCA 52 (12 April 2021), the Supreme Court of Appeal dealt with the principles applicable to and the interpretation of a court order. Meyer AJA (as he then was) said the following in this regard:

“[24] …In Firestone South Africa (Pty) Ltd v Genticuro A.G. 1.19771 4 All SA 600 (A) this Court said this:

‘The basic principles applicable to construing documents also apply to the construction of a court's judgment or order: the court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules. See Garlick v Smartt and Another, 1928 A.D. 82 at p. 87; West Rand Estates Ltd. v New Zealand Insurance co. Ltd., 1926 A.D. 173 at p. 188. Thus, as in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no intrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. (cf. Postmasburg Motors (Edms.) Bpk. v. Peens en Andere, 1970 (2) S.A. 35 (N.C.) at p 39F-H). Of course, different considerations apply when, not the construction, but the correction of a judgment or order is sought by way of an appeal against it or otherwise - see infra. But if -any-uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the court’s granting the order may be investigated and regarded in order to clarify it: for example, if the meaning of a judgment or order granted on an appeal is uncertain. The judgment or order of the court a quo and its reasons therefor, can be used to elucidate it. If, despite that, the uncertainty still persists, other relevant extrinsic facts or evidence are admissible to resolve it.

[25] Since Firestone there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own…

[26] The now well established test on the interpretation of court orders is this:

The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention... ‘ (Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA) para 13 and endorsed by the Constitutional Court in Eke v Parsons 2016 (3) SA 37 (CC) para 29).

[27] The manifest purpose of the judgment is to be determined by also having regard to the relevant background facts which culminated in it being made. (Cross-Border Road Transport Agency para 22, see also Speaker, National Assembly and Another v Land Access Movement of South Africa and Others (20191 ZACC 10 (CC); 2019 (6) SA 568 (CC) para 43.) For as was said in KPMG Chartered Accountants (SA) v Securefin Ltd and Another, 'context is everything’.”

[11] The relief sought in the previous review was predicated on section 312 of the CPA. The intention of the Legislature in this regard is that once a conviction and sentence is set aside on review or appeal for that matter, for lack of compliance with the provisions of section 112(2) of the CPA, that the matter be remitted to the court by which the sentence was imposed and direct that court to comply with the provision in question or to act in terms of section 113 of the CPA, as the case may be.

[12] On a reading of the judgment of the court on review and the order issued, with due regard to the authorities supra, there can be no doubt that the proceedings were set aside in toto with an order that the matter commence afresh before a different Regional Magistrate. The order of the court a quo, notwithstanding the relief sought on review, was clearly not predicated on section 312 of the CPA.

[13] Ms Zwiegelaar therefore misconstrued the review order which she perpetuated in the statement prepared in terms of section 112(2) of the CPA, and in convincing the Regional Magistrate of her misconceived perception. The debate around a new case number under which the matter was proceeding, itself should have caused the Regional Magistrate to interrogate the issue in more detail. At the very least the Regional Magistrate should have insisted on the order of the review court being presented. In this way, the comedy of errors which presented itself in the previous review and which has been perpetuated in the present review, could have been avoided. This is a grave injustice and caused or contributed to a delay in finalising this matter. It has been more than seven years since the accused initially pleaded to the charges in the first review matter.

[14] In passing, it must be said that the further procedure of amending a plea of guilty to include further charges at sentence stage is peculiar, particularly when the accused had pleaded to 46 charges which the State accepted and on which the Regional Magistrate pronounced judgment.

[15] The position in the present review is distinguishable from the previous review, where the accused had pleaded, but where section 112(2) was not applied. In this review, the accused did not plead to the charges on which she was convicted. No verdict could therefore follow as the accused did not plead to the charges. This is unprocedural and highly irregular to the extent that it vitiates the entire court proceedings.

[16] This Court is now once again called upon to set aside the entire proceedings and remit the matter to the Regional Court to start de novo. This does not bode well for the administration of justice, the salutary notion of a speedy trial and the optimal utilisation of State resources.

Conclusion

[17] The proceedings were not in accordance with justice and stand to be reviewed and set aside with an order akin to that in the previous review judgment.

[18] A copy of the judgment must be brought to the attention of the Acting Regional Court President, who is to ensure that the matter commences de novo in its entirety before a completely differently constituted court, which court should exclude all the Regional Magistrates and public prosecutors, who have been complicit in the irregularities inherent in this review and the previous review.

[19] A copy of the judgment must also be brought to the attention of the Director of Public Prosecutions, North West Province for her attention.

Order

[20] Consequently, the following order is made:

1. The proceedings in this matter are not in accordance with justice.

2. The conviction is set aside.

4. A copy of the judgment must be brought to the attention to the Acting Regional Court President by the Registrar of this Honourable Court, to ensure compliance with paragraph 3 of this order.

5. A copy of the judgment must also be brought to the attention of the Director of Public Prosecutions, North West Province.

A H PETERSEN

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA, NORTH WEST DIVISION, MAHIKENG

I agree.

JT DJAJE

ACTING JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

[1] Surname should read Zwiegelaar.

[2] Surname should read Zwiegelaar.