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[2021] ZALMPPHC 34
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S v Sibanyoni (Rev 54/2021) [2021] ZALMPPHC 34 (20 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
no: REV 54/2021
In the matter between:
THE STATE
And
THOLOKWETHU LUSIWE
SIBANYONI
ACCUSED
REVIEW JUDGEMENT
KGANYAGO J
[1]
The accused appeared in Mogalakwena district court before Mr TS
Boloka (magistrate) on one count of
theft of one packet of AAA6
Batteries valued at R99.99 from Pick ‘n Pay Store. After the
rights to legal representation were
explained to the accused, he
elected to conduct his own defence. The accused pleaded guilty to the
charge and the magistrate proceeded
to question him in terms of
section 112(1)(a) of the Criminal Procedure Act 51 of 1977 (Act).
[2]
In questioning the accused the magistrate asked him the following
questions:
“
Q:
On 22
nd
April 2021 were you at Pick ‘n
Pay Mokopane Store?
A: Yes
your worship.
Q: Did
somebody forced you to go to Pick ‘n Pay and steal the alleged
items?
A: No
your worship.
Q:
Have you done it with your own intention?
A: Yes
your worship, but it is not that I went there with an intention to
steal the items. I did not remove them from the shelves,
I picked
them up from the floor.
Q: But
you have done that with your own intention.
A: Yes
your worship.
Q: And
you knew that it is unlawful to do that?
A: Yes
your worship.”
The
accused was found guilty as charged and sentenced to a fine of
R1000.00 or two months imprisonment.
[3]
When this matter was placed before me on special review, I asked the
magistrate to comment on whether his
questioning of the accused did
not amount in the magistrate forcing the accused to admit intention,
and also whether the accused
answers to his questions did not raise a
defence. The magistrate had replied as follows:
“
1.1
The court was not forcing the accused to confirm the elements of
intention rather the court was confirming to the accused that
picking
the item on the floor in the store and taking the same from the shelf
of the same store does not change the intention to
steal or
committing an offence in this circumstances. It is my understanding
that whether the accused picked the item from the
floor or from the
shelf, it is immaterial for the purpose of theft because it was the
same store and there is no allegation of
res
derelictae
nor
res nullius.
1.2 The accused’s
answer that he did not go to the store with the intention to steal
does not raise any defence in law because
his intention to steal is
determined at the crime scene not when he left somewhere else. His
intention before the crime scene is
irrelevant in this case. The
important intention is when he saw the item on the floor inside the
store and decided to take it without
owner’s consent or paying
for it and having the intention to deprive the shop or owner that
item permanently.”
[4] I have
also requested the comments from the Deputy Director of Public
Prosecutions (DDPP). In the opinion of the
DDPP, the magistrate was
asking questions with suggestive answers, and further that with the
answers given by the accused, the
magistrate ought to have entered a
plea of not guilty in terms of section 113(1) of the Act. The DDPP
submitted that the proceedings
were not in accordance with justice,
and they should be reviewed and set aside. The DDPP has further
submitted that in view of
the fact that the accused has already
served his sentence, it will not be in the interest of justice to
subject him to further
proceedings.
[5]
An accused person who plead guilty to the charges levelled against
him or her must admit all the
elements of the offence he or she is
facing before been convicted in accordance with his or her guilty
plea. The trial court is
also entitled to question the accused person
in terms of section 112(1)(b) of the Act in order to test the
validity of his or her
guilty plea. In questioning the accused, the
trial court ought not enter the arena of the prosecution, and the
questioning must
not encourage or persuade the accused to concede to
the offence. The accused must in full inform the court how the
alleged offence
was committed. Out of the accused explanation, the
court must determine whether accused has admitted all the elements of
the offence,
or whether his explanation raises a defence. At this
stage it is not the duty of the court to determine whether the
defence raised
by the accused is plausible or not. It remains the
duty of the State, and not the presiding officer to prove the guilt
of the accused
beyond reasonable doubt.
[6]
In
S
v Shiburi
[1]
Makgoka
AJA said:
“
[18]
…The procedure set out in s 112 is designed to avoid the
necessity for calling evidence in cases where it is clear that
the
accused both understand all the elements of the charge against him or
her and admits them all. As observed by this court in
S v Naidoo
1989
(2) SA 114
(A) at 121E-G, the section was designed to protect an
accused from the consequences of an unjustified plea of guilty. In
the constitutional
era, the procedure in s 112 must be considered
within the context of a right to a fair trial enshrined in s 35(3) of
the Constitution.
The constitutional right to a fair trial should
guide the court in its determination of the ambit of the questions
which should
be put. See Commentary on the
Criminal Procedure Act,
service
54, 17-15.
[19] When questioning the
accused in terms of
s 112(1)(b)
the court’s duty is to
determine whether the accused’s factual statements and answers
in his or her plea of guilty
adequately support the conviction on the
charge. It is not the courts’ function to evaluate the
plausibility of the answers,
or to determine their truthfulness at
this stage of the proceedings. Instead, for the purposes of the
section, the accused explanation
must be accepted as true. On that
premise, the court should consider whether the explanation discloses
a possible defence in law
to the charge he or she pleaded guilty to.
As is plain from the text of the section, the presence of doubt
is a jurisdictional
factor to trigger the application of the
procedure laid down in
s 113.
Thus, once a basis for doubt exists,
objectively considered, the court has no discretion but to apply the
procedure set out in
s 113.
”
[7]
In the case at hand, the magistrate has asked the accused leading
questions which were eliciting
answers which enticed the accused to
make concessions, rather than to allow the accused to tell the court
how he had committed
the offence. Even where the accused’s
answer seemed to raise a defence, the magistrate asked the accused a
follow up question
that persuade or encourage him to make a
concession.
[8]
The accused when asked whether he had the intention to steal,
answered in the affirmative, but
went on to state that he did not
went to the shop with the intention to steal, that he did not remove
the items from the shelves,
but had picked them on the floor. On this
explanation, the accused has raised a defence, and whether this was a
valid defence,
it was for the State to disprove that by leading
evidence. The magistrate in his answer to the query, shows that he
did not find
the defence to be plausible. The magistrate’s
follow-up question of putting it to the accused that he had done that
with
his own intention was entering the arena of the prosecution.
What he should have done with that explanation was alter the guilty
plea and enter a plea of not guilty in terms of section 113 of the
Act. By failing to alter the accused guilty plea to a not guilty
plea
the magistrate has committed an irregularity
[9]
Even if the magistrate’s questions and accused answered were
allowed to stand, they are
not sufficient to prove the guilt of the
accused. There is no evidence as to where in the store, the accused
was found in possession
of the alleged items; whether he was still in
the shop or whether he had already passed the till. If he was still
in the shop,
there is no evidence where on his body the items were
found. The accused was not given an opportunity to explain what was
the relevancy
of him saying that he had found the items lying on the
floor. It was also not established where on the floor of shop had the
accused
removed these items.
[10]
In my view, the accused was not given a fair trial in the manner in
which the magistrate had conducted
the proceedings. I therefore agree
with DDPP that the proceedings were not in accordance with justice,
and they stand to be reviewed
and set aside. I also agree with the
prosecution that since the accused had already served the sentence,
it will not be in the
interest of justice to subject him to further
prosecution.
[11]
In the result I make the following order:
The
conviction and sentence of accused is reviewed and set aside.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE
KGOMO J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLKWANE
DATE
DELIVERED
: 20
th
July
2021
[1]
2018
(2) SACR 485
(SCA) at paras 18 and 19