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[2016] ZAGPPHC 504
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Ronny v S (A435/16) [2016] ZAGPPHC 504 (30 June 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
A435/16
30/6/2016
Reportable:
No
Of
interest to other judges: No
CASE
NUMBER:186/2015
In
the matter between:
NKADIMENG
RONNY
and
STATE
JUDGMENT
KUBUSHI,J
[1]
The accused, Ronny Nkadimeng, was charged in the magistrates' court
Cullinan on two counts, namely, one count of robbery and
one count of
malicious injury to property.
[2]
On the robbery charge it was alleged that on 24 January 2016 and at
or near Rumo Drive, Ext 5, Refilwe in the District of Tshwane
East,
the accused unlawfully and intentionally assaulted Senior Hlatswayo
and did then and with force take three (3) cellphones,
her property
or property in her lawful possession, from her.
[3]
As regards the malicious injury to property charge, the allegation is
that on 2 February 2016 at Rayton in the District of Tshwane
East,
the accused unlawfully and intentionally damaged the window and/or
grill of a bakkie, the property or property in the lawful
possession
of the South African Police Service and/or J Leonard, by kicking or
punching it.
[4]
The accused pleaded guilty and the presiding magistrate proceeded to
question him in terms of s 112 (1)
(b)
of the Criminal
Procedure Act 51 of 1977 ("the
Criminal Procedure Act"
;).
The record shows the material questioning in terms of section 112 (1)
(b)
of the Act as the following:
“
Q: Were you
on
Cullinan in the Tshwane
District?
A: Accused did not
assault Senior Hlatswayo. He fell. People at the tavern were
fighting, including Senior who fell. Accused understands
that the
cellphones did not belong to him. He took the phones in order to sell
them. Accused understood that such action was unlawful.
He was not
forced to take the cellphone by anyone."
[5]
Based on this questioning the presiding magistrate made the following
findings:
"Based on the
testimony, it appears that accused is pleading guilty to the offence
of theft."
[6]
The state accepted the plea of theft and thereafter withdrew the
charges of malicious injury to property against the accused.
The
presiding magistrate found the accused guilty of theft in terms of
s
112
(1)
(b)
of the
Criminal Procedure Act as
pleaded and
proceeded to sentence him. The accused was as a result sentenced to
three (3) years direct imprisonment of which two
(2) years was
suspended for five (5) years on condition the accused is not
convicted of theft or a similar offence during the period
of
suspension. He was also declared unfit to possess a firearm.
[7]
After reading the record of proceedings, the acting judicial head
Cullinan ("the acting judicial head") noticed that
the
accused was convicted in terms of
s 112
(2) of the
Criminal Procedure
Act and
thus referred the matter for review in terms of
s 304
(4)
read with
s 304
(2)
(c)
of the
Criminal Procedure Act, to
this
court. The matter is before me, in chambers, as a reviewing judge.
[8]
The acting judicial head requests in a letter dated 16 May 2016 that
I set aside the conviction and sentence in terms of
s 304
(2)
(c)
(iii) of the
Criminal Procedure Act and
to remit the matter to
the magistrate to note a plea of not guilty in terms of
s 113
of the
Criminal Procedure Act and
continue with the trial in terms of
s 304
(2)
(c)
(v) of the
Criminal Procedure Act, on
the following
grounds:
"(1) The accused was
charged with robbery but convicted of theft. Nowhere in the record
does it reflect that the state accepted
the plea on a theft charge.
(2) The questioning in
terms of
section 112
(1)
(b)
of the
Criminal Procedure Act as
per
Annexure "A" is not in accordance with the law.
Questioning remains primarily a safety measure against unjustified
convictions
and is applied and circumspection [sic!] (see S v Naidoo
1989 (2) SA 114
(A) at 121C). The accused in this matter did not even
admit all the elements of the offence.
(3) The conditions of
sentence in this matter are also not in accordance with the law.
Sentence conditions must be clear and enforceable
in case of
contravention in this instance, the presiding officer uses "similar
offences" which is vague and ambiguous.
(4)
Section 103
Act
60/2000 is an inquiry which must form part of the record. The purpose
thereof is to determine whether the accused should or
should not be
declared unfit to possess an arm. In the proceedings in this matter
the accused was declared unfit to possess an
arm without such an
inquiry.
(5) The record does not
show any direction with regard to the revision of the sentence. The
sentence in this matter warranted to
be dealt with in terms of
section 302
(2)
(b)
of the
Criminal Procedure Act. The
presiding magistrate did not deal with the matter in accordance with
the above mentioned section as required by the law."
[9]
The acting judicial head's letter was referred to the office of the
Deputy Director of Public Prosecutions ("the DDPP")
for
comment. In the comment, the DOPP states that some of the grounds the
acting judicial head raises, without specifically stating
which ones,
have merit and warrant a conclusion that the conviction and sentence
are irregular and should be set aside and comments
further as
follows:
"3.
The original record of
court proceedings shows that the accused was asked on 24 April 2016
[the correct date is 22 April 2016] by
the presiding magistrate
whether he understands the charge
s
(of robbery
and
malicious injury to property) to which he replied in the affirmative.
The presiding officer then recorded that he elects to plead
guilty,
ostensibly on both charges. The accused was then questioned by the
presiding officer in terms of
section 112
(1)
(b)
of the
Criminal Procedure Act only
in respect of count 1 namely robbery. The
original record further shows that the prosecutor brought an
application that the second
count of malicious injury to property be
withdrawn after he had accepted the accused's plea of guilty on a
charge of theft with
regard to the charge of robbery. The acting
judicial head's remark in paragraph 4 (1) of his letter is therefore
incomprehensible.
The same applies to his
remark in paragraph 4 (5) of his letter. His reference to section 112
(2) of the Act in paragraph (2) of
his letter is incorrect. The
original record of court proceedings shows that the following was
conveyed to the accused by the presiding
officer: 'Rights in respect
of application for leave to explain (sic!) in full." Accused
understood this. (see page 1 of the
record). According to the typed
copy of the record the rights in respect of application for leave to
appeal
and Review
were explained in full to the accused.
Magistrate S Rama furthermore certified in his "Application for
Special Review case"
that the prisoner was on the said date
informed that the proceedings should be sent for review by the
Gauteng Provincial Division
of the Supreme Court of South Africa
Pretoria within seven days. This document erroneously refers to a
conviction
of the accused on charges of (1) robbery and (2)
malicious injury to property. The plea of the accused does not even
appear on
the typed copy of the J15. The sentence on count 1 in the
typed copy of the J15 is three (3) years direct imprisonment of which
two (2) years is suspended for five years (5) whereas the original
J15 is three (3) years direct imprisonment of which two (2)
years is
suspended for five (5) years on condition accused does become
convicted (sic!) of theft or a similar offence during period
of
suspension. . .
4.
I now return to the
withdrawal of count 2 of the charge sheet after the accused
(according to the record) pleaded guilty to the
two charges.
Section
6
(a)
of the
Criminal Procedure Act provides
that a prosecutor
may withdraw a charge only before an accused has pleaded to that
charge, in which event the accused shall not
be entitled to a verdict
of acquittal in respect of that charge."
[10]
On the basis of the aforementioned submissions the DOPP is of the
view that the conviction and sentence, in this instance,
are not in
accordance with justice and recommends that they be set aside and the
matter be remitted to the trial magistrate as
suggested by the acting
judicial head and as stated in paragraph [8] of this judgment.
AD
CONVICTIONS
[11]
It is common cause that the accused was charged on two counts,
namely, one count of robbery and one count of malicious injury
to
property. It is also not in dispute that the accused pleaded guilty.
I am, however, not in agreement with the DDPP's submission's
that the
accused pleaded guilty to both charges.
[12]
The original record shows that the 'accused pleaded guilty to the
charges'. The record does not specifically state that he
pleaded
guilty to both charges. My understanding, on perusal of the record,
is that the accused pleaded guilty to the charge of
robbery only.
This view is supported by the fact that the accused was questioned by
the presiding magistrate only in respect of
the robbery. This is also
confirmed by the fact that immediately after the state had accepted
the presiding magistrate's finding
that the accused pleaded guilty to
theft, the state withdrew the charges of malicious injury to property
against the accused. I
am as such satisfied that on count 2, that is,
the charges of malicious injury to property were properly withdrawn.
[13]
As regards count 1, the accused was charged of robbery but found
guilty of theft. The acting judicial head makes a submission
that the
accused should not have been convicted as such because there is
nowhere in the record where it is reflected that the state
accepted
the plea on a theft charge. This submission is wrong. Although this
is not reflected in the typed record, but on a proper
perusal of the
original record it is clear that the state did accept the plea on the
charge of theft. The record shows that after
questioning the accused
in terms of
s 112
(1)
(b)
of the
Criminal Procedure Act, the
presiding magistrate made a finding that
'Based on the testimony,
it appears that Ace is pleading guilty to the offence of theft.'
The
record also shows that the
'State accepts such plea. See annexure
''.A ".'
[14]
The presiding magistrate was correct to have not convicted the
accused on the robbery charges, but, I am not satisfied that
the
conviction of theft has been proved.
[15]
Section 112
(1)
(b)
of the
Criminal Procedure Act stipulates
that -
"(1) Where an
accused person at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which
he may be convicted on the
charge and the prosecutor accepts the plea -
(a) …
(b)
the presiding
judge, regional magistrate or magistrate shall . . . question the
accused with reference to the alleged facts of the
case in order to
ascertain whether he or she admits the allegations in the charge to
which he or she has pleaded guilty. . . ."
[16]
The primary purpose of
s 112
(1)
(b)
of the
Criminal Procedure Act in
questioning the accused after she or he has
pleaded guilty is for the trial court to ascertain whether the
accused admits all the
allegations in the charge she or he is facing.
A further purpose of such questioning is said to be to safeguard an
accused against
the result of an unjustified plea of guilty.
[1]
[17]
I am in agreement with the submission by the DOPP that the
questioning as reflected in Annexure "A" is not adequate
enough to comply with the requirements of
s 112
(1)
(b)
of the
Criminal Procedure Act. The
questioning is too cryptic to determine
if the accused is admitting all the elements of the offence he is
convicted of. The conviction
in terms of
s 112
(1)
(b)
of the
Criminal Procedure Act is
, thus, irregular and cannot stand.
[18]
Both the acting judicial head and the DOPP submit that the conviction
ought to be set aside and the matter remitted to the
presiding
magistrate to note a plea of not guilty in terms of
section 113
of
the
Criminal Procedure Act and
to continue with the trial. I am,
however, of the view that, in the interest of justice, the matter
should be remitted to the magistrates'
court for the accused to be
tried
de novo
before a different magistrate.
AD
SENTENCE
[19]
The submission by the acting judicial head that the conditions of the
sentence imposed, in this instance, are not in accordance
with the
law is correct. It is indeed so that the conditions attached to a
sentence must be clear and enforceable and as such the
use of the
words 'similar offences' in the conditions of the sentence are vague
and ambiguous. On this basis alone the sentence
ought to be set
aside.
[20]
It is also correct that the presiding magistrate should not have
declared the accused unfit to possess a firearm in terms of
s 103
of
the
Firearms Control Act 60 of 2000
without holding an inquiry.
AD
REVISION OF SENTENCE
[21]
The acting judicial head's argument that the record does not show any
direction with regard to the revision of sentence is
unfounded. The
following is stated in the original record – ‘
Rights
in respect of application for leave to explain (sic!) in full’
On a careful reading of the typed record it is clear that rights
in respect of the application for leave to appeal and review were
explained to the accused - and he understood. The presiding
magistrate also certified in the 'Application for Special Review
Case'
that the prisoner was on the said date informed that the
proceedings would be sent for review by the Gauteng Provincial
Division
of the Supreme Court of South Africa within seven days. I am
satisfied therefore that these rights were explained to the accused
in full.
OTHER
IRREGULARITIES
[22]
There are other various irregularities which were brought to my
attention by the DOPP, namely –
23.1. The Application for
Special Review Case mistakenly states that the accused was of the
offence of: (1) robbery, (2) malicious
injury to property. These two
convictions are clearly wrong as the accused was not found guilty of
either of the two convictions.
23.2. The typed J15 does
not reflect the accused's plea.
23.3. The typed J15
erroneously states the sentence on count 1 as
'3 years direct
imprisonment of which 2 years is suspended for
5
years'
whereas the original J15 states the sentence as
'3 years
direct imprisonment of which 2 years is suspended for
5
years
on condition accused does not become convicted (sic!) of theft or
similar offence
during period of suspension.'
23.4. The acting judicial
head refers in paragraph 2 of his letter that the accused was
convicted in terms of
s 112
(2) of the
Criminal Procedure Act. This
is not correct. The accused was convicted in terms of
s 112
(1)
(b)
of the
Criminal Procedure Act. This
is apparent right
through the record if one had taken the time to carefully read the
record.
23.5. A further argument
by the acting judicial head is that the sentence in this matter
warranted to be dealt with in terms of
s 302
(2)
(b)
of the
Criminal Procedure Act. This
argument is entirely misplaced.
Paragraph
(b)
of
s 302
(2) of the
Criminal Procedure Act has
been deleted by s 22 of the Criminal Law Amendment Act 59 of 1983.
[24]
These irregularities are indicative of the wanton manner in which the
presiding officer and/or the staff at the magistrates'
court Cullinan
dealt with this matter. Much as the acting judicial head wanted this
court to correct the proceedings of the presiding
magistrate, he did
not take the necessary precautions required before he could transfer
this matter to this court for review. It
is evident from the reading
of his letter that he did not acquaint himself with the contents of
the record and the relevant provisions
of the
Criminal Procedure Act
which
are applicable in this matter. In cases of this nature it is
imperative that the acting judicial head should thoroughly peruse the
record, which in my view he did not do, and would in that sense have
picked up all these irregularities as mentioned here above.
He should
have noted that members of his staff improperly completed some of the
forms in the record and taken steps to rectify
them before sending
the matter to this court. Importantly, he should have taken time to
read the provisions of the
Criminal Procedure Act which
finds
application in this matter, this in my view he did not do.
[25] In the premises I
would propose to make the following order:
1. The conviction and
sentence handed down on 22 April 2016 by the Magistrate S Rama are
set aside.
2. The matter is remitted
to the magistrates' court Cullinan for a retrial before a different
magistrate.
_____________________
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
_____________________
P.M
MABUSE
JUDGE
OF THE HIGH COURT
[1]
See S v Naidoo
1989 (2) SA 114
(A) at 121C.