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[2016] ZAGPPHC 989
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S v Hlophe (A775/6) [2016] ZAGPPHC 989 (7 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
3
NOVEMBER 2016
Case
number: A775/6
Date:
7/11/2016
THE
STATE V VUSI HLOPHE
HIGH
COURT REF. NO.: 239/2016
MAGISTRATE'S
SERIAL NO.: H31/16
MAGISTRATE'S
CASE NO.: A678/2015
REVIEW
JUDGMENT
PRETORIUS
J,
(1)
This matter is an automatic review which came before me in terms of
section 303 of the
Criminal Procedure Act
1
.
The accused was arraigned in the Cullinan District Court on a charge
of attempted housebreaking with intent to steal and theft
read with
the provisions of section 262(1) of the
Criminal Procedure Act
2
.
(2)
It was alleged that on 28 June 2015 the accused did unlawfully and
intentionally, acting with common purpose, and with intent
to steal
attempt to break open the corrugated iron roof and to enter the shop
of Mr Mabongwane and unlawfully and intentionally
attempted to steal
items valued at approximately R5 000, the property of Mr Mabongwane.
The accused was unrepresented at trial.
(3)
He pleaded guilty and was convicted on 15 July 2016 and sentenced to
"2 years imprisonment half suspended for 5 years on
condition
that the accused is not convicted of housebreaking with intent to
commit an offence committed during suspended period".
(4)
Rautenbach AJ, who originally dealt with this matter, enquired from
the learned Magistrate and made the following remarks:
"No
record of actual conviction or consideration of sentence. Why was
accused convicted of attempted housebreaking?"
(5)
The learned Magistrate replied, inter alia,
"On
reading the plea of the accused I noticed that the accused
pleaded
to housebreaking with intent to steal and therefore, it cannot be
attempt as the act and intention of breaking in has been
completed
.
The accused should have been charged with intent to steal and
attempted theft.
Thus Court take full responsibility for
having failed to notice or realize the discrepancy before taking and
admitting the plea
."
(Court emphasis)
Thereafter
Mngqibisa-Thusi J referred the matter to the Director of Public
Prosecutions (OPP) for comment and recommendations. The
OPP replied
and this court has to deal with the matter.
(6)
When questioned in terms of section 112(1)(b) of the
Criminal
Procedure Act
3
as to how the accused had committed the offence, the following was
recorded:
''ACCUSED:
I broke the corrugated iron roof of the shop of the complainant. I
entered the shop. Whilst inside it seems there was
some boys around
who saw me. They called the owner and he came and found me inside. He
then called the police and was arrested.
I had not yet stolen.
COURT:
Do you admit that by breaking the corrugated iron you were committing
housebreaking?
ACCUSED:
I admit.
COURT:
Do you admit that your intention was to enter and steal?
ACCUSED:
I admit.
COURT:
Did you know that housebreaking with intent to steal and attempted
theft is an offence and if convicted you may be punished?
ACCUSED:
I knew.
COURT:
Do you admit that the property you broke into belongs to PM
Mabogwane?
ACCUSED:
I admit."
(7)
The State accepted the accused's plea. On the J15 the Magistrate
recorded next to date of plea, "guilty" and next
to
judgment he entered, "guilty". It appears there is a
discrepancy between the offence with which the accused had been
charged, namely attempted housebreaking and the questioning by the
Magistrate where the accused pleaded to housebreaking with intent
to
steal and attempted theft, completely different offences. Due to the
fact that the Magistrate did not record what the accused
was actually
convicted of, it further complicates the matter.
(8)
It is trite that when an accused pleads guilty the court is obliged
to ask questions to ascertain whether the accused, in this
instance
an unrepresented accused, admitted all the essential elements of the
offence. In
S v Williams
4
the court held:
"It
is well settled that s 112(1) (b) was designed by the legislature to
protect an accused from the consequences of an unjustified
plea of
guilty.
Accordingly the section has to be applied with care
and circumspection, bearing in mind the principles above
.
Where an accused's responses to questioning suggest a possible
defence, or leave room for a reasonable explanation other than
the
accused's guilt, a plea of not guilty should be entered and the
matter should be clarified by evidence."
(Court emphasis)
(9)
In
S v Mebe
5
the court held:
"It
is apparent that the lacuna in the charge escaped the attention of
the magistrate. His questioning of the accused confirms
that he was
unaware that the charge, as framed, was defective since he did not
address this issue at all. In any event, I cannot
see how any replies
from the accused could have remedied this defect, since the suspicion
that the door was stolen should have
been formed in the mind of some
other person and not the accused.
The magistrate's failure
to identify that the charge was defective has resulted in a
miscarriage of justice. Since there was an
absence of evidence to
cure this defect in the charge, the magistrate erred in convicting
the appellant and his co-accused of having
contravened s 36 of Act 62
of 1955.
"
(Court emphasis)
The
decision confirmed the decision in
Mkhize v The State and Another;
Nene and Others v The State and Another
6
where Broome J held:
"In
my view accused persons in proceedings such as this should be invited
to explain what happened. An accused should be encouraged
to tell his
story. Where possible questions from the Bench should be as few as
possible, and preferably only those necessary (a)
to elucidate what
the accused has volunteered and (b) to canvass any allegations in the
charge not mentioned by the accused and,
of course, (c) to confine
the accused to the relevant detail.... The magistrate's
task
is not only to ascertain from the accused whether he admits the
allegations in the charge but, and this cannot be over emphasized,
to
satisfy himself that the accused is guilty of the offence
."
(Court emphasis)
(10)
In the present instance the Magistrate himself concedes that he had
not convicted the accused according to the plea relating
to the
charge against him. The Magistrate's failure to identify that the
charge was not correct resulted in a miscarriage of justice
and there
was no evidence led to cure this failure by the Magistrate. This fact
is conceded by the OPP, who recommended that the
conviction and
sentence should be set aside as the questioning conducted by the
magistrate does not conform to the offence with
which the accused is
charged. There can be no doubt that the magistrate's actions resulted
in a miscarriage of justice.
(11)
In these circumstances the conviction cannot stand.
1.
The conviction of the accused is set aside;
2.
The sentence of the accused is set aside.
________________
Judge
C Pretorius
I
agree.
_________________
Judge
D S Molefe
1
Act
51 of 1977.
2
Supra
3
Supra
4
2008(1)
SACR 65 (C) at paragraph 6
5
2004(2)
SACR 537 (CK) at paragraph 13
6
1981
(3) SA 585
(N) at 586H – 587 J