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[2018] ZAGPPHC 801
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S v Jita (18/2018) [2018] ZAGPPHC 801 (8 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REVIEW
NO: 18/2018
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
STATE
and
THEMBILE
JITA
JUDGMENT
PETERSEN
AJ:
[1]
The accused pleaded guilty to a
contravention of section 3 of the Criminal Law (Sexual
Offences sand Related Matters)
Amendment Act, Act 32 of 2007 (Rape)
read with section 1(2) of the Criminal Law Amendment Act, Act 105 of
1997 pursuant to the
provision of section 112(2) of the Criminal
Procedure Act, Act 51 of 1977 ("the Criminal Procedure Act")
and was consequently
convicted as charged.
[2]
The facts on which the plea was based
and the accused consequently convicted are as follows :
During the evening of
the 21 September 2014, he was in
the company of a unknown male he had met earlier that evening at a
Tavern. As they
were walking om the Tavern close to an open veld they
noticed a man and woman walking ahead of them, and approached the
couple.
He had a knife in his hand. The man ran away and his
companion chased after him. He decided to rape the woman, who is the
complainant.
He forced her to get down on her knees in the veld,
undressed he , then himself, penetrated her vagina with his penis and
engaged
in non-consensuaI sexual intercourse with her. He left the
complainant in the veld with his companion . As he left his companion
was lying on top of the complainant. He was later arrested after
being linked by DNA.
[3]
The State proved four (4) previous
convictions against the accused, all related to contravention of the
Drugs and Drug Trafficking
Act, Act 140 of 1992 for possession
10, 2011, 2013 and 2014. Save for the 2014 conviction where the
accused was sentenced
to six (6) months imprisonment, he paid an
admission of guilt fine.
[4]
The accused testified in mitigation of
sentence. During the course of examination in chief and questioning
by the regional magistrate,
the following emerged:
EXAMINATION
BY MS ODENDAAL FOR THE ACCUSED
"Now
sir I not d that you have several previous convictions and that most
of them are drug related. At the time of the incident
were you using
drugs or not? - No I was heavily drunk.
Right
but could you still distinguish between right and wrong? - I was
heavily drunk, could not distinguish between right and wrong.
Sir
when you aped the complainant you knew you was doing something wrong?
- No I did not know but I have committed it.
Sir
the problem is the following. If you know come and say oh I did not
know what I was doing was wrong, you are creating a defence.
- No I
made a mistake it is not like that, I made a mistake because of
alcohol.
But
you knew what you were doing and you knew it was wrong? - Yes.
COURT
Okay
can I as you one question.
You
say you were, so intoxicated and apparently you did not know what you
were doing. Why did, why, when, when you saw this gentleman
and the
lady walking in front of you, why did you take out a
knife? - I never had a knife.
You
mentioned in the plea that you had a knife, apparently to fight with.
(Indistinct). - Your Worship I am not the one who was
having a knife,
the person who was in my company is the one who was in
the possession of a knife.
And
there and then he came back to rape the girl? Or to climb on top of
her? - Yes he had sexual intercourse with her while the
knife was
placed on his teeth.
When
he finished you also partook? - Yes when he finished and he then
called me that I must come.
And
you part k? - Yes for the first time I refused. But he said to me
that if I refuse he is going to stab
So
was it you intention to do this? - Yes it was not my
intention."
[5]
The regional magistrate stopped the
proceedings at this stage and forwarded the matter on review premised
on the accused's evidence
that he was threatened with a knife by his
companion and that it was not his intention to rape the complainant.
In
his reasons estates that doubt exists in his mind
whether the proceedings are in accordance with justice as it seems
that the accused
has a defence to the charge of rape. He holds the
view that the conviction must be set aside with an order that the
proceedings
commence de
novo
before
another judicial officer.
[6]
Section 11 (1) of the Criminal Procedure
Act provides as follows:
"If
the court
a any stage of the
proceedings under section 112(1)(a) or (b) or 112(2) and
before
sentence is assed is in doubt whether the accused is in law guilty of
the offence to which he or she has pleaded guilty
or
if it is alleged or appears to the court that the accused does not
admit an allegation in the charge or that the accused has
incorrectly
admitted any such allegation
or
that the accused has a valid defence to the charge
o
if the court is of the opinion for any other reason that the
accused's plea of guilty should not stand,
the
court shall record a plea of not guilty and require the prosecutor to
proceed with the prosecution:
Provided
that any allegation, other than an allegation referred to above,
admitted by the accused up to the stage at which the court
records a
plea of not guilty, shall stand as proof in any court of such
allegation. (m emphasis)
[7]
The regional magistrate reasons for
submitting the matter on review is twofold:
1.He
is in doubt whether the accused is guilty in law, of the offence to
which he had pleaded guilty , and
2.
He believes that the accused has a defence to the
charge of rape.
[8]
The provisions of section 113(1) of the
Criminal Procedure Act are clear and unambiguous in respect of both
reasons for review put
forward by the regional magistrate. he purport
of which is that the regional magistrate was enjoined to record a pie
of not guilty
and proceed with the trial. There is no irregularity in
the proceedings o merit the setting aside of the proceedings on the
stated
reasons.
[9]
In the res It, it is ordered:
That
the matter be remitted to the regional magistrate who is enjoined to
record a plea of not guilty in terms of section 113(1)
of the
Criminal Procedure Act 51 of 1977
and to call o the
prosecutor to proceed with the prosecution.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
I
agree and it is so ordered
TAMAUMELA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
REVIEW
RECEIVED ON 30 JANUARY 2018
JUDGMENT
DELIVERED ON 08 FEBRUARY 2018