Magistrate Tebogo Mokgatle, Tshitale Magistrate’s Court, Limpopo.
Prior Disclosure of Previous Convictions and the Fair Trial Imperative
Tebogo Mokgatle
Magistrate, Tshitale Magistrate’s Court, Limpopo
The views expressed are those of the author and do not necessarily represent the views of the Department of Justice and Constitutional
Development.
The decisions in S v Twai1 and S v Molefe2 reaffirm the North West Division’s increasingly strict approach to the disclosure of an accused person’s prior criminal history before conviction. In both matters, the High Court held that where a magistrate becomes aware of an accused’s previous convictions or criminal antecedents during pre-trial proceedings and thereafter presides over the trial, conviction and sentence, the resulting proceedings are vitiated by a fatal irregularity. The conviction and sentence were accordingly set aside.
While the decisions are firmly rooted in the constitutional imperatives of judicial impartiality and the right to a fair trial under section 35(3) of the Constitution,3 they invite legitimate scrutiny regarding whether the courts have elevated a procedural irregularity into an automatic nullity without sufficient examination of actual prejudice. The judgments emphasise that justice must not only be done but must be seen to be done, relying on authorities such as Nkuna v S4, S v Booysen5, and S v S M N6, which recognise that prior judicial knowledge of an accused’s criminal history may create an objective apprehension of bias.
The principal difficulty, however, lies in the treatment of information disclosed pursuant to section 60(11B) of the Criminal Procedure Act 51 of 1977.7 Parliament expressly authorises the disclosure of previous convictions, pending cases, parole status and related factors for bail purposes. A magistrate who acquires such information during first appearance proceedings does so lawfully and in the execution of a statutory duty. In Molefe, the disclosed information consisted merely of an unproved notation of “2022 Trespassing”, which never formed part of the SAP 69, was never admitted as a previous conviction, and was not relied upon during sentencing.8 The judgment nevertheless regarded the mere disclosure itself as sufficient to vitiate the proceedings.
Respectfully, this approach may be criticised for insufficiently distinguishing between actual bias, a reasonable apprehension of bias and a procedural irregularity causing a failure of justice. The Constitutional Court in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)9 held that the test is whether a reasonable, objective and informed person would apprehend that the judicial officer would not bring an impartial mind to bear on the matter. The enquiry is contextual and fact-specific rather than mechanical. Applying that standard, it is arguable that the courts in Twai and Molefe should have interrogated whether the circumstances objectively demonstrated a realistic risk to impartial adjudication rather than presuming prejudice from prior knowledge alone.
This criticism is strengthened by the facts in Molefe, where the accused pleaded guilty under section 112(1)(b),10 was questioned on the essential elements of the offence, and there was no finding that the magistrate’s conduct reflected reliance on the earlier disclosure. Although a guilty plea cannot cure constitutional unfairness, the absence of any demonstrated nexus between the disclosure and the ultimate conviction may have warranted a more nuanced enquiry into whether a failure of justice had in fact occurred.
Moreover, the judgments appear to extend the principle beyond the circumstances considered in Nkuna v S, where there were additional indications that the magistrate’s awareness of previous convictions had influenced the conduct of the proceedings.11 By contrast, in Molefe the magistrate candidly acknowledged the disclosure and deferred to the reviewing court, yet there was no suggestion of actual partiality or misconduct.12
Nonetheless, the decisions remain defensible on constitutional grounds. South African criminal procedure has historically sought to shield judicial officers from prior conviction evidence until after a verdict has been reached, as reflected in sections 89, 197, 211 and 271 of the CPA.13 The rationale is to preserve both actual impartiality and public confidence in the administration of justice. From that perspective, Twai and Molefe reinforce an important institutional safeguard by prioritising the appearance of fairness over questions of factual guilt.
In conclusion, while Twai and Molefe are consistent with the current jurisprudential trend in the North West Division, a compelling legal critique is that they transform a contextual constitutional enquiry into a near-automatic rule of disqualification. A preferable approach may have been to conduct a careful objective assessment of whether the particular facts created a reasonable apprehension of bias or resulted in a failure of justice. Such an approach would better reconcile the constitutional right to an impartial tribunal with the practical realities of criminal courts operating within the framework of section 60(11B) of the Criminal Procedure Act.
References
Case law
Booysen v S (CA&R 39/2015) [2015] ZAECGHC 135; 2016 (1) SACR 521 (ECG) (25 November 2015).
Nkuna v S (A62/2012) [2013] ZAGPPHC 111; 2013 (2) SACR 541 (GNP).
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC); [1999] ZACC 9; 1999 (7) BCLR 725 (CC).
S v Molefe (Review) (HC23/2026) [2026] ZANWHC 204 (11 August 2026).
S v S M N (HC28/2025) [2025] ZANWHC 178 (28 August 2025).
S v Twai (Review) (HC22/2026) [2026] ZANWHC 199 (3 August 2026).
Legislation
Constitution of the Republic of South Africa, 1996, section 35(3).
Criminal Procedure Act 51 of 1977, sections 60(11B), 89, 112(1)(b), 197, 211 and 271.
1 S v Twai (Review) (HC22/2026) [2026] ZANWHC 199 (3 August 2026) (North West Division, Mahikeng) (Petersen J and Reddy J).
2 S v Molefe (Review) (HC23/2026) [2026] ZANWHC 204 (11 August 2026) (North West Division, Mahikeng) (Petersen J and Reddy J).
3 Constitution of the Republic of South Africa, 1996, s 35(3).
4 Nkuna v S (A62/2012) [2013] ZAGPPHC 111; 2013 (2) SACR 541 (GNP) paras 3 and 10.
5 S v Booysen 2016 (1) SACR 521 (ECG); Booysen v S (CA&R 39/2015) [2015] ZAECGHC 135 (25 November 2015).
6 S v S M N (HC28/2025) [2025] ZANWHC 178 (28 August 2025) (North West Division, Mahikeng) paras 8–9.
7 Criminal Procedure Act 51 of 1977, s 60(11B).
8 S v Molefe (Review) (HC23/2026) [2026] ZANWHC 204 (11 August 2026) paras 2 and 10–11.
9 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC); [1999] ZACC 9;
1999 (7) BCLR 725 (CC) para 48.
10 Criminal Procedure Act 51 of 1977, s 112(1)(b).
11 Nkuna v S 2013 (2) SACR 541 (GNP) at 544b: the magistrate’s prior remarks on the accused’s previous convictions and subsequent conduct of the
trial demonstrated that the earlier knowledge had influenced the proceedings.
12 S v Molefe (Review) (HC23/2026) [2026] ZANWHC 204 (11 August 2026) para 9.
13 Criminal Procedure Act 51 of 1977, ss 89, 197, 211 and 271.