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South Africa: Eastern Cape High Court, Mthatha
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[2019] ZAECMHC 74
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Kilo v S (369/2019) [2019] ZAECMHC 74 (1 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE NO
:
369/2019
In
the matter between:
ZUKILE
KILO
Applicant
and
THE
STATE
Respondent
JUDGMENT
GWALA
AJ
1.
This matter came to this court by way of an
automatic review. The background is that on 05 February 2019, the
Magistrate Court,
Cacadu, granted a protection order against the
applicant in terms of which he was ordered not to insult, assault or
harass the
complainant who is apparently his mother. The order was
served upon the applicant and he was aware of the court order.
2.
During June 2019, the applicant was charged for
contravening the court order. It was alleged that the contravention
took place on
02 June 2019. It was alleged that he insulted the
complainant by calling her an “asshole and a witch” which
was in
contravention of the order previously granted by the court.
3.
The applicant appeared in court duly represented
by an attorney. He tendered a plea of guilty and was found
guilty accordingly.
He was sentenced to 12 months imprisonment half
of which was suspended for a period of five years on condition that
he is not convicted
of contravening the protection order dated 05
February 2019. He was also declared unfit to possess a firearm in
term of
Section 103(1)
of the
Firearms Control Act 60 of 2000
.
4.
It appears from the record that the protection
order was granted on 05 February 2019. Axiomatically, this was
preceded by some or
other violence perpetrated by the applicant
against the complainant. It does not appear that the applicant
appeared in court
during February 2019 or any time thereafter prior
to the present charge.
5.
It appears that when the applicant tendered the
plea of guilty, he pleaded to the offence committed on 02 February
2019. The charge
sheet did not refer to the offence committed on 02
February 2019.
6.
In his statement in terms of
section 112
of the
Criminal Procedure Act 57 of 1977
, the applicant stated thus: -“
“
3
On the 2
nd
day of February 2019 and at Ezingqolweni Village in the District of
Cacadu I did wrongly and unlawfully contravene a prohibition
order
imposed on me in terms of the protection [order], in that I insulted
the complaint by calling her asshole and witch…”
7.
The said statement was read into the record by
the applicant’s legal representatives. The transcribed record
reads as follows:-
\
“…
On the
2
nd
day of February 2019 at Ezinxolweni Village in the District of Cacadu
I did wrongfully and unlawfully contravened the prohibition
that was
imposed on me in terms of which I should not insult or harassed the
complainant I did so by insulting the complainant
by calling her an
[arsehole] and a witch… ”
8.
As aforesaid the applicant was found guilty on
the basis of his plea of guilty. However, the problem that arises is
that the applicant
pleaded guilty to commission of an offence which
according to him occurred on 02
February
2019 whereas the charge-sheet referred to an offence that was
committed on 02 June 2019.
9.
It would appear that the applicant indeed
intended to plead guilty to the commission of an offence which
occurred on the 02 February
2019 which ordinarily led to the
protection order being granted against him on 05 February 2019. He
did not plead to the charge
with which he was charged at the time.
Nevertheless, his plea of guilty was accepted by the court,
a
quo
hence he was found guilty.
10.
I am of the view that an irregularity occurred in
the proceedings. The applicant pleaded to an incorrect offence,
namely, the one
that occurred on 02 February 2019 and not to the one
with which he was charged. He pleaded guilty to the offence that
resulted
in the protection order being granted and not to the
contravention of the protection order itself.
11.
Accordingly, in view of the irregularity pointed
out above, I am of the view that the conviction and sentence be set
aside and that
the matter be referred back to the court,
a
quo
for the proceeding to start
de
novo
before another Magistrate. In the
circumstances I proposed an order in the following terms:
11.1
The conviction and sentence of the applicant are
asset aside;
11.2
The matter is referred back to the Magistrate
Court for the District of Cacadu for
de novo
hearing before another Magistrate.
11.3
It is directed that the applicant be released
from custody pending the finalisation of the matter.
_________________
M
Gwala,
Judge
of the High Court of South Africa (Acting),
Eastern
Cape Division, Mthatha
I
agree, and it is so ordered.
____________________
RWN BROOKS
Judge
of the High Court of South Africa,
Eastern
Cape Division, Mthatha