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[2018] ZAFSHC 217
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S v Molefe; S v Goodman (R346-2018; R348-2018) [2018] ZAFSHC 217 (24 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: R346/2018
In
the review of:-
THE
STATE
and
THABO
MOSES MOLEFE
Review
No.: R348/2018
In
the review of:-
THE
STATE
and
KGOSIMANG
GOODMAN
CORAM:
MUSI, AJP
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
24 December 2018
[1]
This matter was sent on special review by the acting senior
magistrate, Bloemfontein.
[2]
The accused was charged with theft. He was convicted in terms
of section 112(1)(a)
[1]
of Act
51/1977 after a plea of guilty.
[3]
It has been said on numerous occasions that section 112(1)(a) should
only be utilized for minor offences. The acting senior
magistrate refers to some of the cases in which this principle was
enunciated.
[2]
[4]
I may just add that it is not advisable to use section 112(1)(a) for
common law offences, which are generally serious offences.
[5]
I agree with the acting senior magistrate that these proceedings were
not in accordance with justice.
[6] I make the following
order.
The
conviction and sentence are set aside.
____________
C.
J. MUSI, J
[1]
Section
112(1)(a) reads as follows:
“
The
presiding judge may, if he is of the opinion that the offence does
not merit the sentence of death, or the presiding judge,
regional
magistrate or magistrate may, if he is of the opinion that the
offence does not merit punishment of imprisonment or
any other form
of detention without the option of a fine or of a whipping or of a
fine exceeding the amount determined by the
Minister from time to
time by notice in the
Gazette
,
convict the accused in respect of the offence to which he has
pleaded guilty on his plea of guilty only and-
(i)
impose any competent sentence, other than the sentence of death or
imprisonment or any other form of detention without the
option of a
fine or a whipping or a fine exceeding the amount determined by the
Minister from time to time by notice in the
Gazette
;
or
(ii)
deal with the accused otherwise in accordance with law;”
[2]
S
v Tshabalala (102/2015)
[2016] ZAFSHC 90
(5 May 2016); S v Addabba;
S v Ngeme; S v Van Wyk
1992 (2) SACR 325
(T); Pietersen v S
A472/2016 WCHC; S v Van Wyk
[2014] JOL 31649
(FB); Msiya v S
(AR654/2017) [2018] ZAKZPHC 41 (31 August 2018).