S v THETHA 2017 (2) SACR 363 (ECG)

Sentence — Addressing court on sentence — Accused not legally represented — Magistrate asking accused whilst still in witness box whether he had anything further to say to court before sentence — Such not amounting to compliance with s 274 of Criminal Procedure Act 51 of 1977.

The accused was convicted of theft in a magistrates’ court and gave evidence in mitigation of sentence. Whilst still in the witness box, the magistrate asked him whether there was anything else he wanted to tell the court before sentence.

The court held on review that the procedure adopted by the magistrate did not amount to compliance with s 274 of the Criminal Procedure Act 51 of 1977 (the CPA) because the unrepresented accused may have construed that to have meant any other factors, apart from those already mentioned in his evidence. This was also indicated by the fact that the magistrate then called upon the prosecutor to cross-examine the accused. It was not made clear that the accused was required to address the court as to what type of sentence, in his view, might be appropriate and why. (See [7].) The conviction was upheld but the matter was remitted back to the magistrate for proper compliance with the section.


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