Cut, Paste… and Convict?

In a courtroom twist that proves even the law isn’t immune to a dodgy copy-paste job, a Western Cape man’s protection order conviction has been overturned, not because he was innocent, but because the prosecution cited a non-existent law.

The man’s legal journey took a surprising turn in the Western Cape High Court when Judge Thulare was conducting a quality assurance review of a conviction and sentence delivered by a magistrate. Such reviews by judges are standard procedure for any sentence over three months of imprisonment imposed by a judicial officer with less than seven years as a magistrate, or over six months by one with seven or more years.

The saga began when Moegamaat Railoun, a married mechanical engineer and father of three, whose substance abuse reportedly turned him into a handful (to put it mildly), faced two charges, i.e., violating a protection order and damage to property. He was convicted of two the counts and sentenced to three years imprisonment. However, Judge Thulare spotted a glaring issue with the first charge.

It stated that Railoun was guilty of contravening Section 17(a) of the Act on Family Violence 116 of 1998. Looks straightforward enough, except no such Act exists in South African law. There was once a Prevention of Family Violence Act 133 of 1993, whose substantive provisions were repealed by the Domestic Violence Act 116 of 1998. The former only had nine sections, while the latter had 22. It is clear that the prosecution’s overzealous copy-and-paste skills had somehow conjured up an entirely new piece of legislation, and the magistrate duly convicted Railoun for contravening that phantom Act. Fortunately, the review led to an overturn of his conviction related to the protection order, but the judge did maintain the sentence for damaging property.

Judge Thulare highlighted the importance of accurate legal application, as opposed to cut-and-paste approaches, which he said should not replace legal expertise. He additionally emphasised the need for nuanced sentencing, particularly for repeat offenders struggling with addiction, as was the case with Railoun.

Despite the technicality, the impact on Railoun’s family was profound, the court noted. The damage to property might seem minor, but the emotional toll on his loved ones was significant. Judge Thulare further stressed the need for a comprehensive approach beyond incarceration, suggesting tailored rehabilitation programmes and community support to address underlying issues.

So, while Mr Railoun isn’t totally dodging incarceration, the case serves as a reminder for legal practitioners to always double dot the i’s and triple cross the t’s. Oh, and definitely lay off Artificial Intelligence for case law and legislation.

You can read the full S v Railoun review here.

Written by Theo Tembo