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[2023] ZAFSHC 98
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S v Nzanza (R04/2023) [2023] ZAFSHC 98 (15 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R04/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
THE
STATE
And
BANTAKILE
PIET NZANZA
Accused
CORAM:
DANISO, J
et
MAHLANGU, AJ
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment
was handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 14H00
on
15 March 2023.
[1]
This is a Special Review in terms of s304 (4) of the Criminal
Procedure Act 51 of 1977 (“The CPA”). The accused was
convicted by the Hertzogville district court on 1 September 2022 for
theft of a cellular phone. He was subsequently sentenced to
a fine of
R2000.00 in default of payment of the fine, to undergo thirty (30)
months’ imprisonment. The sentence was wholly
suspended for a
period of five (5) years with conditions.
[2]
The accused was convicted on the basis of his guilty plea tendered by
means of a statement
in terms s112(2) of the CPA (“the s112(2)
statement”) in which he made the following averments:
“
I the
undersigned, Piet Nzanza,
1.
Admit that I am an accused person in this matter and I fully
understand the allegations levelled against me as per charge sheet.
2.
I understand the nature, content and implications of this
statement.
3.
I plead guilty to the charges freely, voluntarily and without
undue influence whilst in sound and sober senses.
4.
I plead guilty to the charge of theft in that on or about the
6
th
of July 2022 and at or near 2[...]
M[...], Hertzogville in the district of Boshoff, I did unlawfully and
intentionally steal the
following item to wit; a cellphone (mobicel)
valued at R700.00. The property was in lawful possession of Mamosa
Chaka.
4.1.
I further admit that the incident took place in the
jurisdiction of this honourable court. On the day of the incident I
had gone
to see my lady friend at her house which is next to my half-
sister’s house. My half-sister is the complainant in this
matter.
As I was sitting with my lady friend, she got up and went on
about doing her chores around the house it was just after mid-day.
I
then decided to go visit my half-sister while my lady friend was busy
in her house. When I got to the complainant’s house
I knocked
but Immediately noticed that there was no one in the house. I then
turned the door knob to check or to ensure that indeed
no one is
there. As I grabbed the door knob or handle and opened the door it
opened and it was unlocked. I then walked into the
house and called
out the complainant’s name but no one answered. I then noticed
a cell phone on the table. I decided to take
the cell phone and I did
take it and immediately left the house. I went back to my lady
friend’s house and remained there
until I left. The complainant
was not back at her house when I left my lady friend’s place.
The next day at about 08:00 I
went back to my sister’s house
and I gave her, her cell phone and told her that I took it yesterday
when I came looking for
her and I took it for safekeeping as I
thought anyone could enter her house and take it as it was just lying
on the table and the
door was not locked. She then told me to wait
for bit inside the house and she walked out. A short while later
while we were sitting
in the house, police officers arrived and I was
taken to the police station where I was charged for theft of a cell
phone…”
[3]
Pursuant to the conviction and sentencing of the accused, the senior
magistrate forwarded
the record of the proceedings for special review
on the basis that in the s112(2) statement, it is not clear:
“
whether
it was admitted that the accused had the intention to permanently
deprive the owner of the cell phone as per averment in
the charge. It
is well founded law that such element is essential to constitute the
offence of theft…” and although
it was admitted that the
accused person had the intent to steal, the facts upon which the
admission is based is set out in the
2
nd
last and last paragraph of the section 112(2) statement in which it
is indicated that the cell phone was taken for safekeeping
and
returned the next day as it was left unattended to. The complainant
is the sister to the accused person.”
[4]
Based on these reasons, it is submitted by the senior magistrate that
the s112 (2)
statement discloses a defence therefore, a conviction
should not have ensued.
[5]
From the record of the proceedings it can be established that the
presiding magistrate’s
comments were requested by the senior
magistrate and in his response, the presiding magistrate stated that:
“…
as
to whether the accused had the intention to deprive the complainant
my view is that the offence of theft was committed when he
took the
cell phone and left the intention may not have been to deprive
permanently the accused ought not to have been convicted
even though
the prosecutor accepted the plea…”
[6]
The senior magistrate’s contentions are supported by the
Director of Public Prosecutions (“the DPP”). I am
sincerely
grateful to Advocates Mkhabela and Chalale for their prompt
and well-reasoned response to my request for their invaluable inputs.
[7]
The issue that arises in these proceedings is whether the conviction
of the accused
based on the acceptance of the
s112
(2)
statement was in accordance with justice.
[8]
In terms s112(2)
,
an accused may be convicted based on the written statement
handed
in by his legal representative if the court is satisfied that the
accused is guilty of the offence to which he has pleaded
guilty in
that, all the elements of the offence to which the accused has
pleaded guilty have been established in the statement.
As correctly
pointed out by the senior magistrate and the DPP, theft involves the
unlawful and intentional appropriation of property
with the intention
of permanently depriving the owner of ownership.
[1]
[9]
The examination of the s112(2) statement reveals that the essential
element of the
theft offence namely, intention to permanently deprive
the complainant of the ownership of the cell phone was not admitted
instead,
the accused explained that his intention for taking the cell
phone was merely to keep it safe for the complainant after he found
the complainant’s house unlocked and the cell phone lying on
the table. He was concerned that anyone could enter the house
and
take it. He returned it the next day as by the time he left, the
complainant was still not back home.
[10]
Lack of intention can be a defence to the offence of theft. The
provisions of s112(2) requires
a court to
question
an accused with reference to the lack of an admission to any
allegations in the charge and the defence raised t
o the
charge
in
order establish that the accused was indeed guilty of the offence in
question.
[11]
I am aligning myself with
Liebenberg,
J’s conclusions in
S
Kondo
[2]
namely that: the s112(2) statement should not be a simple
regurgitation of what appears in charge sheet. The facts and the
basis
on which the plea is tendered must be clearly set out, if they
are not, the presiding officer should put questions to the accused
in
order to satisfy himself that the accused admits the facts of the
case which underlie the criminal charge, whether or not the
accused is assisted by a legal representative in preparing the
statement.
[12]
From the s112(2) statement, it is not clear beyond a reasonable doubt
that the accused’s
action in taking the cell phone was intended
to
permanently
deprive the complainant of the ownership
thereof thus guilty of theft and where there
is
doubt that the accused is guilty of the crime he had pleaded guilty
to, the provisions of s113 of the CPA come into play in that,
the
court must record a plea of not guilty and require the prosecutor to
proceed with the prosecution.
[3]
[13]
Having regard to the facts of this matter, I am of the view that the
presiding magistrate misdirected
himself by convicting the accused
based on a s112(2) statement
which
raises a defence to the charge. Accordingly, the
proceedings
in this matter were not in accordance with justice. The conviction
and sentence cannot stand. The proceedings must be
set aside.
[14]
In the circumstances, the following order is made:
1.
The conviction and sentence is set aside.
2.
The matter is remitted to the magistrate’s court to start
de
novo
before another magistrate.
NS
DANISO, J
I
concur and it is so ordered.
EM
MAHLANGU, AJ
[1]
CR
Snyman, Criminal Law
in the 7
th
edition 2020 at page 429.
[2]
2012
JDR 0553
(Nm).
[3]
S
v Tshumi & others
1978
(1) SA 128
(N); [
1978]
1 ALL SA 273
(N);
Shiburi
v S
[
2018]
ZASCA 101
;
2018
(2) SACR
485
(SCA) at para 19F-G.