- High Court in Mahikeng set aside the conviction and 12-month prison sentence imposed on Simon Mmote Twai.
- Judges found the magistrate’s prior knowledge of the accused’s previous convictions rendered the trial unfair despite his guilty plea.
- The matter will return to the Lichtenburg Magistrate’s Court before a different magistrate.
The theft of several pairs of socks worth just R239.96 has resulted in an important ruling on fair trial rights, with judges in the High Court in Mahikeng finding that even a guilty plea cannot save a conviction where the trial itself was unfair.
Judge AH Petersen, with Judge A Reddy concurring, set aside Simon Mmote Twai’s guilty plea, conviction and 12-month direct prison sentence after finding that the magistrate who heard the case had already learned of his previous convictions before determining his guilt.
Twai admitted stealing multiple pairs of socks worth R239.96 from a store at Lichtenburg Mall on 10 February 2026. His guilty plea, however, could not save the conviction because the High Court found that the proceedings had been fatally compromised before the trial reached the plea stage.
Magistrate already knew accused’s criminal record
Twai first appeared before Magistrate C Wessels on 12 February 2026. During that appearance, the magistrate administered the warning required by Section 60(11B) of the Criminal Procedure Act, whereupon Twai disclosed that he had previous convictions, including five for theft.
Despite hearing that disclosure, Magistrate Wessels remained the presiding officer throughout the case. She accepted Twai’s guilty plea on 30 March 2026, convicted him and, on 3 June 2026, sentenced him to 12 months’ direct imprisonment. Twai was legally represented throughout the plea and sentencing proceedings.
Magistrate admits oversight
Before delivering judgment, Judge Petersen called on Magistrate Wessels to explain why she continued presiding despite having heard the accused disclose his previous convictions.
In her written response, the magistrate said she had no independent recollection of the disclosure when she later convicted and sentenced Twai.
"I have no independent recollection that the accused disclosed previous convictions during those proceedings. At the time I accepted the accused’s plea, convicted him and later imposed sentence, I was not consciously aware that such disclosure had previously been made before me," she said.
Having considered the authorities referred to by the High Court, she accepted there was no legal basis to distinguish the case. "If my prior involvement in the Section 60(11B) proceedings rendered me disqualified from presiding at the subsequent trial, I respectfully accept that this constituted an irregularity. I regret this oversight and assure the Court that I shall ensure that this issue receives careful attention in future proceedings," she said.
Guilty plea could not rescue conviction
Judge Petersen said the magistrate’s honesty was commendable but did not change the legal position. "The magistrate’s candid response confirms that she presided at the s60(11B) proceedings and does not dispute that the disclosure was in fact made," the judge said.
The court emphasised that the issue was not whether Magistrate Wessels had actually been biased, but whether justice could objectively be seen to have been done. "The enquiry is objective. It does not turn on whether the presiding officer subjectively recalls or was consciously alive to the disclosure at the moment of conviction," Judge Petersen wrote.
"It turns on whether a reasonable, objective and informed observer, aware that the disclosure was made to the same officer who thereafter convicted the accused, would apprehend a risk to impartiality. A guilty plea does not cure that irregularity, since the concern is not whether the correct result was in fact reached, but whether justice was seen to be done."
The judges concluded that the proceedings were vitiated by an irregularity and that both the conviction and sentence had to be set aside.
High Court steps in
The judgment also addressed why the matter reached the High Court on automatic review despite Twai having legal representation, which would ordinarily exclude such a review.
Magistrate Wessels explained that she mistakenly referred the matter because she had fewer than the required years of service and overlooked that the accused had been legally represented throughout the proceedings.
Judge Petersen held that the High Court nevertheless had jurisdiction to intervene because section 304(4) of the Criminal Procedure Act allows a judge to correct proceedings that were not in accordance with justice once the irregularity comes to the court’s attention.
Fresh hearing ordered
The High Court reviewed and set aside Twai’s conviction and sentence. It directed that, if he remains in custody because of the conviction, he must be brought before a magistrate other than Magistrate Wessels.
The court further ordered that, if Twai is convicted at the fresh hearing, the new presiding magistrate must take into account the time he has already spent in custody together with the High Court’s judgment when imposing sentence.
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