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[2018] ZALMPPHC 32
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S v Moseamedi (B673/17, 32/2018) [2018] ZALMPPHC 32 (26 June 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Ga-Kgapane B673/2017
REV NO: 32/2018
In
the matter between:
THE
STATE
vs
MAHLORI
EDWARD MOSEAMEDI
REVIEW
JUDGMENT
KGANYAGO
J
[1]
This matter was brought on special review in terms of s 304(4) of the
Criminal Procedure Act 51 of 1977 (“the CPA”)
by the
Acting Judicial Head, Magistrate Ga-Kgapane.
[2]
The accused appeared before Acting Magistrate Negota K on a charge of
housebreaking with intent to steal and theft. He pleaded
guilty to
the charge. He was convicted on that charge based on his guilty plea
and sentenced to twelve months imprisonment or payment
of a fine of
R2000-00 half of which was suspended for five years on condition that
the accused is not convicted of housebreaking
with intent to steal
and theft.
[3]
The Acting Judicial Head is of the view that the Acting Magistrate
during the questioning of the accused in terms of s 112(1)(b)
of the
CPA did not determine the intention of the accused and also whether
he was aware that his conduct was unlawful and also
how he gained
entry into the building. The Acting Judicial Head is further of the
view that the Acting Magistrate has exceeded
his jurisdiction as set
out in s 302(1)(a) of the CPA as he was appointed an Acting
Magistrate on the 5
th
June 2017 and has not worked as a presiding magistrate before his
date of appointment.
[4]
The Acting Magistrate in his reply to the queries raised by the
Acting Judicial Head stated that he relied mostly on the inferences
drawn from the accused when he explained how the offence was
committed, and that what he did can be said to be short of justice.
He conceded that he had exceeded his jurisdiction when sentencing the
accused to twelve months imprisonment, and that what he did
amounts
to an irregularity.
[5]
I have requested the opinion of Deputy Director of Public
Prosecutions (“the DDPP”). They have furnished me with
a
helpful opinion and I am indebted to them. The DDPP are of the
opinion that the proceedings in the court
a
quo
amounted to failure of justice and should be set aside and the matter
be remitted to the court
a
quo
for a trial
de
novo
before another presiding officer.
[6]
The purpose of s 112(1)(b) questioning is to test whether an
unrepresented accused is indeed pleading guilty. The questions
and
answers must at least cover all the essential elements of the offence
which the State in the absence of a plea of guilty would
have been
required to prove
(See S v Mkhize 1978(1) SA 264(N)).
[7]
Intent and unlawfulness are the essential elements of the offence of
housebreaking with intent to steal and theft. From the
record it does
not appear that the Acting Magistrate has questioned the accused on
these two elements and also how he gained entry
into the building. In
his reply to the queries raised by the Acting Judicial Head, the
Acting Magistrate conceded that he did not
question the accused on
these essential elements of the offence and that his conduct amounts
to an irregularity.
[8]
The essential elements of the offence have not been established and
therefore, in my view, the Acting Magistrate has failed
to satisfy
himself that the accused fully understood and has admitted all the
essential elements of the offence before convicting
him. That
amounted to an irregularity that taints the whole proceedings.
[9]
With regard to jurisdiction the Acting Magistrate has conceded that
he has exceeded his jurisdiction when he sentenced the accused
to
twelve months imprisonment despite being appointed as Acting
Magistrate on the 5
th
June 2018. However, s 302 of the CPA relates to sentences subject to
automatic reviews and it read as follows:
“
1 (a) Any
sentence imposed by a magistrate’s court-
“
(i)
Which, in the case of imprisonment (including detention in a child
and youth care centre providing a programme contemplated
in section
191(2)
(j)
of the Children’s Act, 2005 (Act 38 of 2005)), exceeds a period
of three
months,
if imposed by a judicial officer who has not held the substantive
rank of magistrate or higher for a period of seven years,
or which
exceeds a period of six months, if imposed by a judicial officer who
held the substantive rank of magistrate or higher
for period of seven
years or longer;
(ii)
which, in the case of a fine, exceeds the amount determined by the
Minister from time to time by notice in the Gazette for
the
respective judicial officers referred to in subparagraph (i); shall
be subject in the ordinary course to review by a judge
of the
provincial or
local
division having jurisdiction.”
[10]
This section governs automatic reviews in accordance with the rank of
a magistrate. It does not prescribe the sentence which
a magistrate
should impose. In my view, an Acting Magistrate has the same powers
and/or authority
which
a magistrate with a substantive rank has. He or she may impose any
sentence which a
magistrate with substantive rank can impose as long as it is
within the
jurisdiction of that court. This section does not limit the powers of
an Acting Magistrate in relation to which sentence
to impose. An
Acting Magistrate is required to perform any other duties which may
be performed by a magistrate who hold a substantive
rank. Therefore,
in my view, the complaint raised by the Acting Judicial Head has no
merit on this aspect.
[11]
However, in relation to questioning in terms of section 112(1)(b),
proceedings are not in accordance with justice. The irregularity
on
this aspect is so gross to extent that the whole proceedings stand to
be reviewed and set aside. The accused was not afforded
a fair
trial.
[12]
It is not clear whether the accused has been released pending the
outcome of this review or whether he has already paid the
fine. If he
was unable to pay the fine and has been in custody from the date he
was sentenced, it will be unfair for him to be
subjected to another
trial. In my view it will therefore not be in the interest of the
accused for matter to be remitted to the
court
a quo
for a
trial
de novo.
[13] In the result
I make the following order.
13.1
The conviction and sentence of the accused is reviewed
and set aside.
13.2
If the accused has paid the fine or a portion of it, he
should be refunded in full.
_________________________
MF KGANYAGO J
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO
PROVINCIAL
DIVISION, POLOKWANE
I
agree
_________________________
MV SEMENYA J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
PROVINCIAL DIVISION, POLOKWANE