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S v Nyaile (593/2010) [2011] ZAFSHC 3 (6 January 2011)

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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA


Review No. : 593/2010


In the review between:-


THE STATE


versus


PAUL MZWAKE NYAILE



JUDGMENT BY: CILLIé, J

_____________________________________________________


DELIVERED ON: 6 JANUARY 2011

_____________________________________________________


JUDGMENT



[1] This matter was heard by an acting magistrate. It was sent for review by the control magistrate in terms of section 304(4) Act 51 of 1977 on account of serious flaws in the proceedings.


[2] The record does not indicate what plea the accused tendered, no indication that section 112(1)(a) or (b) of the Act was applied, personal and mitigating factors extracted from the accused before sentence, no indication of whether previous convictions were proven, no explanation to the accused that he may call witnesses on mitigation and ultimately an incompetent sentence was imposed.


[3] The control magistrate’s request that the proceedings be set aside, must be granted.

The following order is made:

The conviction and sentence is set aside and the matter is remitted to the magistrate for a de novo trial.


____________

C.B. CILLIé, J




/sp