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[2016] ZAFSHC 23
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S v Masilo (15/2016) [2016] ZAFSHC 23 (11 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Review
Nr. : 15/2016
In
the matter between:-
THE
STATE
And
THABO
JOHANNES MASILO
CORAM:
MOLOI, J et CHESIWE, AJ
DELIVERED
ON:
11
FEBRUARY 2016
REVIEW
JUDGMENT
MOLOI,
J
[1]
This matter was referred to me by the Magistrate, Welkom, on special
review in terms of
section 304(4)
of the
Criminal Procedure Act, 51
of 1977
, as amended (the CPA).
[2]
The accused was charged with Intimidation in contravention of
section
1
of the
Intimidation Act No 72 of 1982
by threatening to kill his
live-in partner after a disagreement in their common home. The
accused pleaded guilty to the charge
on 3 November 2010. When he was
questioned by the magistrate in terms of
section 112(2)(b)
of the
CPA, it became clear that he did not admit all the elements of the
offence charged. The presiding magistrate consequently
entered a plea
of not guilty in terms of
section 113
of the CPA. The matter was
remanded to 1 December 2010 for the leading of the evidence.
[3]
The accused failed to appear in court on 1 December 2010. Only on 1
October 2015 did he appear and the case was remanded first
to 9 and
later to 25 November 2015 for evidence. When the accused appeared for
trial on 25 November 2015, the charge against him
was withdrawn
without much ado. The withdrawal of the charge was clearly not in
terms of
section 6(a)
of the CPA as he had already pleaded neither
was in terms of
section 6(b)
authorising the prosecutor to stop the
prosecution.
[4]
Section 106(4)
of the CPA provides as follows:
"An accused
who pleads
to
a
charge,
other
than
that the
court
has
no jurisdiction to
try
the
offence,
or
an accused on
behalf
of
whom
a
plea
of
not
guilty
is
entered
by
the
court,
shall,
save as
it
is
otherwise expressly
provided
by
this
Act
or
any
other
law,
be entitled to
demand that
he
be
acquitted or
be convicted."
From
the above it is clear that once an accused has pleaded he is entitled
to a verdict of guilty or not guilty. The withdrawal
of the charge is
not an appropriate step to take and cannot be simply withdrawn once
the accused has pleaded or a plea has been
entered on his behalf,
like in this matter:
S v
Sibuyi
1993(1)
SACR 235(A). In
S v
Sithole
it was said
that where an accused had pleaded to certain charges in respect of
which no judgment was given, he must be acquitted
on all those
charges. The relevance of the pronouncement of the verdict stems of
the provisions of the pleas of
autrefois
convict
and
autrefois
acquit:
[5] In the circumstances
the mere withdrawal of the charge after the accused had pleaded
thereto is not sufficient to bring the
matter to a close and the
matter may continue to hang over the head of an accused indefinitely:
Delport
&
Others
v
S
[2015] 1 All SA 286
(SCA) at [34]. The prosecution must
be allowed to deal with the matter in terms of its authority to bring
the matter to a close.
Simple withdrawal is not according to law.
[6] Consequently the
following order is made:
6.1
The withdrawal of the charges against the accused on 25 November 2015
is set aside.
6.2
The prosecution is allowed to act in
terms of its powers.
_______________
K.J
MOLOI, J
I
concur
______________
S.
CHESIWE, AJ