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[2016] ZAFSHC 73
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S v Mothobi / Lefoane (R64/2016) [2016] ZAFSHC 73 (5 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Nr. : R64/2016
In
the matter between:-
THE
STATE
And
NTHABELENG
MOTHOBI / JOYCE LEFOANE
CORAM:
MOLOI, ADJP et MOLEMELA, JP
DELIVERED
ON:
05
MAY 2016
REVIEW
JUDGMENT
MOLOI,
J
[1]
This matter was referred to me by the magistrate, Bloemfontein, to
review the proceedings in terms of
section 304(4)
of the
Criminal
Procedure Act 51 of 1977
. The magistrate remarked as follows in the
letter covering the record of the proceedings:
“
3
The accused pleaded guilty to the charge in terms of
S 112(2)
of Act
51/1977 and I accordingly convicted her. However it came to my
attention before sentence was imposed that the accused misrepresented
the court into thinking that she was indeed Nthabeleng Mothobi,
whereas she was in actual fact Ms Joyce Lefoane. The above was
disclosed by the accused on the day the sentencing proceedings were
scheduled.
4
I confirm therefore that when convicting the accused before me, I
labored under the impression
that it was indeed, the right person and
the Attorney was unaware of the misinterpretation and the conviction
in this matter was
based on misrepresentation by the accused.
5
In the light of the above the Honourable Reviewing Judge is requested
to set aside the conviction
and remit the matter for trial
De
Novo
.”
[2]
It is trite that only the accused who has committed a specified
charge can be convicted thereof. In
S v
Sebeko
[1998] JOL3782(T) the accused
pleaded guilty to possession of dagga and was questioned in terms of
section 112(1)(a)
of Act 51 of 1977 and was convicted. It later,
before sentence, transpired that the accused was never charged with
possession of
dagga but with housebreaking with intent to steal and
theft. On review the proceedings and the conviction were set aside by
the
court.
[3]
The key consideration in such proceedings, as in this matter, is
whether the proceedings and the conviction are “
in
accordance with justice”
:
Taljaard v S
[2004] JOL
13095
(c).
In
this case the accused pleaded guilty to a charge with which a
different person, Nthabeleng Mothobi, was charged. It will not
be in
accordance with justice to convict a different person than the person
charged. In the circumstances the proceedings and the
subsequent
conviction stand to be set aside.
[4]
What causes a problem with the magistrate’s request is to remit
the matter for trial
de novo
in the magistrate court. A trial
de novo
means the same person must go face the same charge afresh in the
magistrate’s court. There can be no justification for such
a
ruling when the finding is made that a wrong person was charged.
Making such a ruling will again not be in accordance with justice.
Whom to charge in respect of this matter and on which charge remains
the prerogative of the prosecution.
[5]
In the circumstance I would make the following order:
The
proceedings and conviction of the accused on 22 February 2016 are set
aside.
________________
MOLOI,
ADJP
I
agree and it is so ordered.
________________
MOLEMELA,
JP