Plaatjies v Director of Public Prosecutions, Transvaal

The appellant, Boisile Amos Plaatjies, was convicted in the regional court, Potchefstroom, on charges of murder, assault with intent to do grievous bodily harm, and unlawful possession of a firearm. He was sentenced to 7 years' imprisonment on count 1, 1 year on count 2, and 3 years on count 3. On appeal to the Transvaal Provincial Division of the High Court, the convictions and sentences were set aside on 22 February 2005 because the trial magistrate had committed a fatal irregularity by sitting without assessors without first obtaining the appellant's consent as required by s 93 ter(1) of the Magistrate's Court Act 32 of 1944. The court was therefore not properly constituted and its judgment was invalid. The respondent reinstituted criminal proceedings against the appellant on the same charges before a different regional magistrate. On 4 December 2007, the appellant successfully entered a plea of autrefois acquit. The Director of Public Prosecutions appealed against the acquittal.

• Whether the legal position on the application of autrefois convict or autrefois acquit has been changed by the provisions of s 35(3)(m) of the Constitution
• Whether the common law should be developed to extend the ambit and scope of the rule of autrefois convict and autrefois acquit to cover cases where the court in the first appeal has not examined the merits
• Whether the first order by Magistrate Mabile was appealable or an interlocutory order
• Whether it would be fair and just to stop the prosecution of the appellant in view of the long history and many delays in the case and in view of s 35(3)(d) of the Constitution read with s 38

The appeal was dismissed.

The binding legal principle established is that s 35(3)(m) of the Constitution, which provides the right not to be tried for an offence for which a person has previously been acquitted or convicted, does not prevent retrial where the previous proceedings were vitiated by a technical irregularity that precluded valid consideration of the merits. For the protection against double jeopardy to apply, the accused must have been acquitted on the merits and been in jeopardy of conviction. If the previous prosecution was vitiated by irregularity, it cannot found a plea of autrefois acquit because the accused was not acquitted on the merits and was never in jeopardy of conviction. Section 324 of the Criminal Procedure Act 51 of 1977 permits reinstitution of criminal proceedings where a conviction is set aside on grounds of incompetence of the court, invalidity or defectiveness of the indictment, or technical irregularity or defect in the procedure.

The court made observations regarding the requirement for a permanent stay of proceedings application, noting that an accused person who seeks such relief is required to bring a substantive application before the court, alleging that his or her rights under s 35(3)(d) of the Constitution have been infringed, with proper evidence as to who is to blame for any delay. The court also commented on the poor quality of the transcription of the record of proceedings before Magistrate Mabile, though this was ultimately not determinative of the appeal. The court noted that it appeared the appellant was to a large extent to blame for the delay in finalising the matter, though this was not fully developed in argument.

This case confirms that s 35(3)(m) of the Constitution, which protects against double jeopardy, has not altered the common law position that an accused can be retried where a conviction was set aside on appeal due to a technical irregularity that vitiated the trial and prevented consideration of the merits. The case reinforces the distinction between irregularities that are so gross as to vitiate a trial (permitting retrial under s 324 of the Criminal Procedure Act 51 of 1977) and lesser irregularities where the court can consider the merits (which may result in an acquittal on the merits preventing retrial). The judgment clarifies that the constitutional protection against double jeopardy requires that the accused must have been 'in jeopardy of conviction' and acquitted on the merits for the protection to apply. The case provides important guidance on the interaction between constitutional rights and procedural criminal law in South Africa.