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 Swigelaar1 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.

1
Surname should read Zwiegelaar.
 • 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 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 SUTTELAR2 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]

2
Surname should read Zwiegelaar.
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.

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.

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