Bed-and-breakfast case referred back to court
A quantity surveyor found guilty of contravening national building regulations when he turned a Bellville house into a bed-and-breakfast, has asked the Western Cape High Court to set aside his conviction on the basis that the magistrate who convicted him committed gross irregularities.
Albertus Smit van Wyk alleges the magistrate failed to explain his rights to him, particularly his rights to legal representation and to have the trial conducted in his mother tongue, and did not properly administer the oath to the State's single witness.
The State has conceded that the oath was not correctly administered, and has also not disputed that Van Wyk's pretrial rights were not properly explained to him.
In October 2009, the Parow Municipal Court convicted Van Wyk of four counts of contravening National Building Regulations and the Building Standards Act.
The court found he had deviated from an approved plan, failed to comply with a notice to rectify the deviation, erected a shade port beyond the permissible building line, and occupied the building without a certificate of occupancy.
He was fined R16 000 (or 32 months in jail).
Yesterday he appealed before Judge Andre le Grange and Acting Judge Pearl Mantame.
His advocate, Grant Smith, told the court Van Wyk was not legally represented during the trial, and that the magistrate had a duty to explain his right to legal representation to him.
He added that the magistrate should have seen that, as a layman, Van Wyk struggled to conduct his own defence, yet she still failed to assist him.
At one stage, Van Wyk even asked the court what mitigation meant.
"He was alone out there," Smith said.
Turning to the issue of the administration of the oath, Smith submitted that it meant there was no evidence before the court on which a conviction could be based.
Prosecutor Tillette Berry conceded that the oath was not correctly administered, but said the magistrate still managed to convey the importance of speaking the truth to the witness.
Turning to the allegation that the magistrate did not properly explain Van Wyk's rights to him, Berry said she could not take the issue any further.
She did, however, ask the court not to set aside the conviction, but rather to refer the matter back to the municipal court so it could be conducted afresh before a different magistrate. Judgment was reserved.
Weekend Argus (Saturday Edition)
Posted at 08:30AM Aug 13, 2012 by Editor in Cities and Towns |