About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 6
|
|
S v Mabe (A32/2016) [2016] ZAGPPHC 6 (21 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
A32/2016
Date:
21/01/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
High
Court Reference No: 553/15
Magistrates
Serial No: 33 / 2015
Case
No: 6584 / 2015
MAGISTRATE
TSHWANE
NORTH (held at PRETORIA NORTH)
THE
STATE V BRIAAN MABE
REVIEW
JUDGMENT
POTTERILL
J
[1]
The accused was convicted of theft in the Pretoria North Magistrates
Court on his plea of guilty in terms of section 112 ( 1)
( b) of Act
51 of 19 77. He was sentenced to a fine of R4 000 or 12 months
imprisonment of which half was suspended for a period
of three years
on certain conditions.
[2]
In the accused·s guilty plea he explained that he was in
actual fact only borrowing the goods and did not have the intention
to permanently deprive the complainant thereof.
[3]
I was of the view that the accused had not pleaded guilty as he had
pleaded that he had no intention and therefore I referred
the matter
back to the Magistrate. The Magistrate however persisted that the
finding of guilty was correct in that the accused
had admitted that
he would normally take the clothes in the absence of the complainant
and when the complainant came back from
Johannesburg unexpectedly
found that his clothes were not where they were and that some were
missing. This according to the Magistrate
proves the intention to
steal.
[4]
I referred the matter to the Director of Public Prosecutions for
their comment. The Director of Public Prosecutions by means
of Senior
State Advocate A.P. Wilsenach and Deputy Director of Public
Prosecutions G.D. Baloyi commented as follows:
"The magistrate.
unfortunately. both makes and then misses the point completely when
he states in his reasons and judgment
that the accused did not admit
the required element of intent and then nevertheless convicted him of
theft. The conviction is clearly
not in accordance with justice and
must be set aside. The magistrate was obliged in terms of section
113(1) to have recorded a
plea of not guilty and required the
prosecutor to proceed with the prosecution.
"
It
is then submitted by that officials of the DPP that the conviction
and sentence be set aside and the matter referred to the Magistrate
to be further dealt with in terms of section 113 ( 1 ) of the
Criminal Procedure Act. Act 51 of 19 77.
[5]
I agree with this view as it is trite that intention must be admitted
for a plea of guilty to stand. The Magistrate must take
cognisance
hereof as it is trite in our law.
[6]
I accordingly make the following order:
6.1.
The conviction and sentence are set aside.
_________________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
_________________________
A.
J. BAM
A.J.
BAM JUDGE OF THE HIGH COURT