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[2022] ZALMPPHC 39
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S v Seema and Another (REV32/2022) [2022] ZALMPPHC 39 (19 July 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
REV32/2022
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
THE
STATE
And
ROUTLY
MATOME SEEMA
1
ST
ACCUSED
SAMMYSON
MAPESA SEKWALA
2
ND
ACCUSED
JUDGEMENT
KGANYAGO
J
[1]
The two accused appeared before A Swanepoel the regional magistrate
Seshego on one count of murder read
with the provisions of section
51(2) Schedule 2 Part II of the
Criminal Law Amendment Act 105 of
1997
, and one count of assault with intend to do grievous bodily
harm. Both accused were legally represented throughout the trial.
Both
accused were made to plead only on count 1, and thereafter the
State proceeded to call its first witness who was sworn in, and
commenced giving evidence. During the course of the evidence in chief
by the State’s first witness, the State realized that
the two
accused have not pleaded on count 2. The parties agreed to refer the
matter to this court on special review.
[2]
When this matter was laid before me as a special review, I requested
the comments of the Deputy Director
of Public Prosecutions (DDPP).
The comments of the DDPP were helpful and I am indebted to them.
According to the DDPP the wording
of section 105 of the
Criminal
Procedure Act
[1]
(the Act) is peremptory and that it require the accused to plead to
the charge put to him before evidence is led, and that the
magistrate
cannot rectify an oversight for failure to comply with that section.
The DDPP is of the view that the proceedings be
set aside, and the
matter be tried
de
novo
before a different magistrate.
[3]
Section 105 of the Act provides as follows:
“
The charge
shall be put to the accused by the prosecutor before the trial of the
accused is commenced, and the accused shall, subject
to the
provisions of sections 77, 85, and 105A, be required by the court
forthwith to plead thereto in accordance with section
106.”
[4]
In
S v
Gumbi
[2]
Ponnan JA said:
“
In terms of
s 105 the charge must be put to an accused by the prosecutor before
the trial is commenced. As soon as the charge is
put to an accused he
or she must plead to it. The plea determines the ambit of the dispute
between the accused and the prosecution.
It is only after the accused
has pleaded to the charge that the
lis
is established between
the accused and the prosecution. It is the function of the
prosecuting authority, not the court, to decide
the charges upon
which an accused should be brought to trial and the function in that
regard extends up to the time when a plea
is tendered and the
decision has to be made whether the plea is to be accepted or not.
The acceptance of the plea by the prosecutor
at the commencement of
the trial is –
‘
a sui
generis act by the prosecutor by which he limits the ambit of the lis
between the State and the accused in accordance with
the accused’s
plea…. That the lis is restricted by the acceptance of the
plea appears from ss 112 and 113. The proceedings
under the former
are restricted to the offence “to which he has pleaded guilty”
and the latter must be read within
that frame.’”
[5]
In
S v
Moses
[3]
Binns-Ward J said:
“
Paragraph 7
of the judgment of the Supreme Court of Appeal in S v Mamase and
Others (1) SACR 121 (SCA), to which reference was made
in ZW in the
passage quoted earlier, does not hold that s 105 is peremptory in the
sense that it is essential that it be complied
to the letter. The
judgment holds that a plea process in criminal proceedings is
peremptory in terms of s 105, which is something
different. The
appeal court made that observation in the context of determining when
a trial commences. Its determination was that
the effect of s 105
(and s 106, which prescribes the nature of the various types of plea
that an accused may plead) is that a criminal
trial does not commence
until the accused pleads to the charge(s). To use an analogy from the
civil procedure,
litis contestatio
is not obtained, and the
case is not triable, until the accused has pleaded.”
[6]
The accused plea will give the prosecution direction of what evidence
to lead in order to secure its
intended conviction. The court will
not be in a position to pronounce whether the accused is guilty or
not without the accused
having pleaded to the charge. In the case at
hand, even though both charges were put to the accused, the accused
pleaded only to
count 1 and the magistrate also noted the plea on
count 1. Thereafter the State started leading evidence by calling its
first witness.
It was only during the middle of the evidence of the
first State witness that the prosecutor realised that the accused
have not
pleaded on count 2. It seems the same witness who was busy
testifying about count 1, will also have to cover count 2 in his
testimony.
[7]
Since the accused have not pleaded on count 2, the easy route to
follow will be for the State to proceed
on count 1 to finality, and
later separately proceed with count 2. However, that route will be
undesirable, prejudicial to both
parties and costly as the same
witnesses will have to come back and relate the same evidence that
they have already tendered. The
magistrate who had already dealt with
count 1 will have to recuse herself as she would have already made a
pronouncement on count
1. Even though the trial is still at its early
stages, the magistrate will not be able to set aside the proceedings
for it to start
de novo
, or to simply record a not guilty plea
for the trial to proceed on both counts.
[8]
The trial against both accused has not commenced on count 2, and it
will not just commence in the middle
of the trial on count 1 whilst
the same evidence necessary for count 1, is also necessary for count
2. It is peremptory that an
accused plead before the evidence is
lead, and I agree with the DDPP that the magistrate will not be in a
position to rectify such
kind of an oversight. In my view, the
proceedings were not in accordance with justice, and stands to be
reviewed and set aside.
[8]
In the result I make the following order:
8.1 The proceedings in
this matter are reviewed and set aside.
8.2 The matter is
remitted back to the regional court for a trial
de novo
before
another magistrate should the prosecution still wish to pursue the
matter.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION
Circulated
electronically on : 19
TH
JULY 2022
[1]
51
of 1977
[2]
2018
(2) SACR 676
(SCA) at 682j-683d
[3]
2019
(1) SACR 75
(WCC) at para 14