Western Cape High Court Judge Robert Henney acquitted a Riversdale man after he was convicted and sentenced for a different crime. Picture: File
A man who was wrongly sentenced and convicted to three years’ imprisonment for a traffic violation has been acquitted by the Western Cape High Court after the “gross irregularity” was rectified.
Ashlon Jacobs pleaded guilty to a traffic contravention where he was charged for intentionally and unlawfully operating a vehicle without the consent of the owner or the person in lawful possession of the car.
This was after he was arrested near Bali Trading, close to the N2, in the district of Riversdale.
In his plea, Jacobs never admitted to “driving” or “riding” in the vehicle. Instead, he admitted that he alone pushed the car to the airfield.
The appellant had, therefore, not admitted facts sufficient to sustain the elements of either “driving” or “riding” in the car. The accused also conveyed that he was not inside the vehicle at the time he was found with the car.
He was sentenced on September 13, 2023.
However, according to the judgment, Jacobs was convicted and sentenced for a different crime than the one mentioned in the written guilty plea. At the Riversdale Magistrate’s Court, he was sentenced for contravening the General Law Amendment Act (“the GLAA”).
Almost a year later and after Jacobs served a year of his sentence, on July 4, 2024, the magistrate discovered a mistake in the conviction and sentence while preparing for an annual quality control inspection.
In the special review received by high court judge Robert Henney, the magistrate noted: “The following mistakes made by me were detected while I was preparing for my annual quality control inspection and doing overhead checking of the cases I finalised.
“The accused pleaded guilty to a charge of contravening section 66(2) Act 93 of 1996… It is now evident to me that the accused actually pleaded guilty to contravening section 1(1) Act 50 of 1956. This oversight cannot be explained by me and any attempt might sound as an attempt to exonerate me of any blame.
“If this oversight was not the worst, I proceeded to sentence the accused on 2023/9/13 to a period of 36 months’ imprisonment. Once again, I can merely speculate that I read the provisions of section 89(3) of Act 93 of 1996 incorrectly or confused the two section(s).
“I can even speculate that I read the plea before imposing sentence and sentenced the accused as if he was convicted of contravening section 1(1) Act 50 of 1956. I was, however, at fault and am now attempting to remedy the situation,” the magistrate proffered in his special review application.
Henney said the oversight of the magistrate was a “gross irregularity” and that it should have been apparent to the magistrate, the prosecutor, and Jacobs’ legal representative that he was found guilty of a different crime.
“The charge could have been amended and a not guilty plea could have been entered. Also, the appellant’s attorney could have consulted with the appellant to take instructions on whether the appellant still wished to plead guilty to the wider offence of ss 1(1) of the GLAA or to contravening section 66(2) of the RTA.
“The failure of the appellant’s legal representative to intervene is also a major factor that contributed to the injustice. As the person who drafted the written guilty plea statement, the legal representative should have been aware of the substantive requirements of the relevant crimes. It is implicit that the legal representative must have explained the different crimes to the appellant…
“The effect of the error is that the accused must still serve two years of a three-year sentence of a crime he did not plead guilty to and for which a wrong sentence was pronounced. The prejudice and injustice to the appellant in these circumstances are apparent and do not require further elucidation,” said Henney.
chevon.booysen@inl.co.za