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[2010] ZAGPPHC 540
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S v Magwete (A277/10) [2010] ZAGPPHC 540 (13 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
DATE: 13 April 2010
REPORTABLE
CASE NUMBER: A
277/2010
Magistrate
BOCHUM
Case No: B166/2009
High Court Ref No:
1740
THE STATE v
MATOME ALBERT MAGWETE
REVIEW JUDGMENT
PRINSLOO. J
[1] This matter came
before me as a special review in terms of section 304(4) of the
Criminal Procedure Act, Act 51 of 1977.
[2] The accused was
convicted on eight counts of theft in the magistrate's court of
Bochum on 5 November 2009.
[3] All eight counts
were taken as one for the purpose of sentence. The accused was
sentenced to three years imprisonment.
[4] All eight counts
related to the theft of tombstones, of all things.
[5] At the
commencement of the trial, the accused, who was legally represented,
pleaded guilty to all the charges. His legal representative
handed up
a written statement, in terms of the provisions of section 112(2) of
Act 51 of 1977 ("the Act").
[6] The concern of
the learned magistrate of Bochum, when referring the matter for
special review, involved the convictions on counts
1 and 2.
[7] The relevant
portion of count 1 reads as follows:
“
THEFT
That the accused is
guilty of the offence of theft
IN THAT upon or
about 29 May 2009 and at or near Bochum in the district of Bochum,
the accused did unlawfully and intentionally
steal the following
items, to wit 5 x tombstones
the property or in
the lawful possession of Smakalina Esther Machaba with intent to
deprive the complainant permanently of her property.
...'
[8] Count 2 reads as
follows:
“
THEFT
THAT the accused is
guilty of the offence of theft
IN THAT upon or
about 27 May 2009 and at or near Westphalia Farm in the district of
Bochum, the accused did unlawfully and intentionally
steal the
following items, to wit 5 x tombstones
the property or in
the lawful possession of Mokgadi Raphadu with intent to deprive the
complainant permanently of her property.
...”
[9]
The statement offered on behalf of the accused in terms of section
112(2) of the Act,
supra
,
which was read into the record, reads as follows with regard to
counts 1 and 2:
"Count 1. I
agree that on 29 May 2009 I went to Bochum in the company of my
employees and took five tombstones belonging to
Semakaleng Machaba
without her permission.
Count 2. I admit
that on 27 May 2009 I went to Westphalia Farm in the company of my
employees and took five tombstones belonging
to Mokgadi Raphadu
without her permission."
The usual admissions
were also made to the effect that the accused knew that he was
committing a crime and that he had not been
unduly influenced or
coerced by anyone to make the statement.
[10] The accused was
duly convicted.
[11] As part of the
sentencing procedure, the prosecutor then called some of the
complainants in aggravation of sentence.
[12] In respect of
count 1, as I have said, the charge was in respect of five tombstones
and so was the plea, from which the conviction
followed, before the
evidence in aggravation was led. From the evidence, it appeared that
what the accused had in fact stolen was
"five pieces emanating
from two different stones".
[13] With regard to
count 2, as I have pointed out, the charge was in respect of "5
x tombstones" and the accused, in
his written statement, pleaded
guilty to taking "5 tombstones" and he was convicted on the
strength thereof before the
complainant testified. When the
complainant testified (after a leading question) she stated that
"five pieces of the tombstone"
were stolen.
[14] It therefore
appeared from the evidence, that although the accused had pleaded
guilty as charged, the theft in respect of count
1 was not of "five
tombstones" but of "five pieces emanating from two
different stones".
Similarly, with
regard to count 2, it appeared from the subsequent testimony that the
theft was not of five tombstones but of "five
pieces of the
tombstone".
[15] It is this
state of affairs which inspired the learned magistrate to refer the
matter for special review in order to determine
whether or not the
proceedings were in accordance with justice with regard to the
convictions on counts 1 and 2.
[16] I referred the
matter for comment to the learned Director of Public Prosecutions
who, in a very helpful memorandum, suggested
that the two counts
should be amended to bring them in line with the subsequent evidence
whereupon the convictions on those counts
should be set aside and
replaced with convictions flowing from the amended charges. It was
suggested that the convictions on the
other counts and the sentence
as imposed should be confirmed.
[17] Although
section 86(1) of the Act provides for the amendment of the charge "at
any time before judgment", it appears
that the courts have, for
many years, recognised that the charge can also be amended on appeal
or review in appropriate circumstances.
[18]
In Hiemstra's
Criminal
Procedure
the
following is said at 14-19:
"On
appeal or review it is still possible to amend the charge. This can
be done in terms of sections 304(2)(c)(iv) and section
309(3), being
the 'order as the magistrate's court ought to have given'. Although
it is not entirely clear that a power to amend
is contained in these
words, the power to amend on appeal or review has never really been
doubted since
R
v
Gibson
1956(2)
PH H 147 (A). See also
Burkett's
Transport supra
at
1601 [my note: the reference is
1988 1 SA 157
(A)] and
S
v Kruger supra
at
795C-D [my note: the reference is
1989 1 SA 785
(A)]. The essential
question is whether there is any reasonable possibility of prejudice
to the accused if the amendment is granted.
The test is whether the
accused will be worse off than he or she would have been had the
charge in its amended form existed when
he or she was initially asked
to plead
(S
v
F
1975
3 SA 167
(T) at 170G-H). It must be clear that the defence w'ould
have remained exactly the same had the charge initially read as it
does
after the amendment
(R
v
Mahomed
1929
AD 58
;
R v Naidoo
1948
4 SA 69
(N))."
[19]
In
Barkett's
Transport, supra,
the
following is said at 160H-J:
"Mnr
Marais het die aansoek om wysiging gegrond op die bepalings van
artikel 86(1) van die Strafproseswet 51 van 1977. saamgelees
met
artikels 309(3) en 304(2)(c)(iv) van dieselfde Wet. Laasgenoemde twee
artikels magtig die wysiging van 'n aanklag op appêl
of
hersiening deurdat die Hof 'die bevel gee wat die landdroshof moes
gegee het' en verleen geen wyer magte van wysiging as wat
in artikel
86 bevat is nie
(R
v
Gibson
1956(2)
PH H 147 (A)."
[20]
In
S
v
Kruger, supra,
the
following is said at 795C-D:
"Dit word egter
reeds sedert laatstens 1956 aanvaar dat 'n hof van appêl die
bevoegdheid het om ’n wysiging toe
te staan wat die verhoorhof
voor uitspraak sou kon bewillig het..."
[21]
See also the discussion on the subject in Du Toit et al
Commentary
on Ihe Criminal Procedure Act
at
14-24 and authorities there quoted. See also
Sv
Nesane
1980
2 SA 103
(V) at 104C-F and Sv
Kuse
1990(1)
SACR 191 (E) at 197a-d.
[22]
Returning to the test when it comes to considering an amendment on
appeal or review, as set out by the learned author in
Hiemstra,
supra,
namely
whether the accused will be worse off than he would have been had the
charge in its amended form existed when he was initially
asked to
plead, it is clear, that he would have offered the same written
plea-explanation than he did during the actual trial.
To start with,
he pleaded guilty to the theft of five tombstones on both counts and
he also offered pleas of guilty in respect
of the theft of the
tombstones relating to the other six charges. Where the learned
magistrate took all the counts and convictions
together for purposes
of sentence. I consider it totally unlikely that the final sentence
would have been any different had counts
1 and 2 been framed to
provide for "two tombstones consisting of five pieces" and
"one tombstone consisting of five
pieces" respectively.
[23] Against this
background. I consider that the requirements for amending a charge on
review have been met and. accordingly, counts
1 and 2 are amended to
read as follows:
"Count 1: In
that upon or about 29 May 2009 and at or near Bochum in the district
of Bochum the accused did unlawfully and
intentionally steal the
following items, to wit. 2 x tombstones consisting of five pieces,
the property or in the lawful possession
of Smakalina Esther Machaba
with intent to deprive the complainant permanently of her property.
Count 2: In that
upon or about 29 May 2009 and at or near Westphalia Farm in the
district of Bochum the accused did unlawfully and
intentionally steal
the following items, to wit. 1 x tombstone consisting of five pieces,
the property or in the lawful possession
of Mokgadi Raphadu with
intent to deprive the complainant permanently of her property."
[24] In the
circumstances I make the following order:
1. Counts 1 and 2
are amended as described above.
2. The accused is
convicted on counts 1 and 2 as amended.
3. The convictions
in respect of counts 3, 4, 5, 6, 7 and 8 are confirmed.
4. The sentence as
imposed in respect of all eight charges is confirmed.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I agree
H
J FABRICIUS
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
B166-09