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[2016] ZAFSHC 120
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S v Thulo and Another (R87/2016) [2016] ZAFSHC 120 (5 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: R87/2016
In
the matter between:
The
State
and
Samantha
Thulo Kedibone Margeret Ntaita
CORAM:
MOCUMIE,J et MOLOl,ADJP
DELIVERED
ON:
05 MAY 2016
MOCUMIE,J
[1]
The matters under case A212/15 and A272/15 were placed before this
court on special review by the Senior Magistrate, Welkom,
Mr SF
Ferreira, in terms of s304(4) of the Criminal Procedure Act 51
of 1977 (the CPA).
[2]
On 9 October 2015 two accused persons, Ms S Thulo (accused No1) and
Ms K M Ntaita (accused no2), appeared in Hoopstad magistrate
court
before a magistrate, Mr SS Mmushi. The two were represented by Mr
Kwela on instructions of the Legal Aid Board.
[3]
According to the record, accused no 1 pleaded guilty and
accused no 2 pleaded not guilty. The court adjourned.
On
resumption, the prosecutor applied that accused no 2 be joined with
accused no 1 in the same proceedings. The prosecutor informed
the
court that 'the state has just compiled a new charge sheet for
accused no 2 which will use case number 8272/15 ...' He continued
to
place on record that 'case number 212 and 272 will be tried together
as they are involved in the same facts.' The court granted
the
application with no objection from the defence. The matter was then
postponed until 12 October 2015.
[4]
There is no indication on record what happened on 12 October 2015.
The next date on which case 212/2015 was attended to
was on 6
November 2015 on which day, the state withdrew the charge against
both accused persons on the basis that 'there was a
successful
mediation.'
The
count endorsed the withdrawal of case 212/15 against both accused
person, 'after successful mediation'.
However
on 06 November 2015 as per the charge sheet the magistrate noted
'charge withdrawn in respect of offender 2 provisionally
on
24/8/2015.Withdrawn against both by PP.'
[5]
There is no entry in respect of case A272/15 i.e. how it was
disposed of or even whether it was disposed of in the first place.
[6]
What is abundantly clear on the transcribed record as well as the
original J15 with its annexures pages 1-5 of the record there
is no
entry indicating whether case no 272/15 was disposed of finally.
[7]
Section 6 (b) on the CPA provides for various methods in which a case
may be disposed of. The section refers to two instances:
(a) where
the proceedings were stopped by the prosecutor and (b) where the
accused was acquitted/ found not guilty and discharged.
[8]
Section 106(4) of the CPA provides that once an accused
person has pleaded to a charge, whether guilty
or not
guilty, (s)he is entitled to a verdict/ judgment as set out in s6(b)
above.
[9]
In both cases in issue, there is no entry. i.e whether the accused
persons were found guilty or not guilty. It remains unclear
what
finally happened in court despite the magistrate signing off the
record on 6 November 2015.
[10]
In the light of the above, the two cases have not been finally
disposed of. They are still alive. The only remedy available,
as
correctly proposed by the senior magistrate, is to set aside the
order of withdrawal of the case against both accused persons
on 6
November 2015 and set aside the plea (of not guilty) under case
A272/15 to allow the proceedings in case A212/15 to be continued.
[11]
In the event, the following order is granted:
ORDER
1.
The order of withdrawal against both accused persons granted on 6
November 2015 against both accused
as per the original J15 on 24
August 2015 is set aside.
2.
The plea of not guilty under case no A212/15 is set aside to allow
the proceedings under
case no A212/15 to continue and be dealt with
as the Director of Public Prosecutor deems fit.'
_________________
MOCUMIE,
J
_________________
MOLOI.
ADJP