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[2015] ZAGPPHC 20
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S v Maluleke (A950/2014) [2015] ZAGPPHC 20 (6 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A950/2014
DATE:
6 JANUARY 2015
REVIEW
CASE NO: A225/14
A
QUO
CASE NO: 26/2014
HIGH
COURT REF:607/2014
In the matter
between:
THE
STATE
.......................................................................................
Appellant
And
NHLANHLA
UNIFY
MALULEKE
..................................................
Accused
REVIEW JUDGMENT
STRAUSS,
AJ:
[1] This matter
comes before this Court in terms of section 303 of Act 51 of
1977, the Criminal Procedure Act, as it was referred
to this Court
for automatic review.
[2] The accused a 20
year old male, was convicted in the magistrates court Malamulele,
on a charge of housebreaking with the
intent to steal goods to the
value of R899. He pleaded guilty and the magistrate questioned the
accused in terms of Section 112
(1) (b) of Act 51/1977. (CPA)
[3]
The court sitting in review had regard to the record of the
proceedings and directed questions to the magistrate on 5 August
2014, to answer to the finding
prima
facie
that
the questions posed by the magistrates in terms of Section 112
(1) (b) of the CPA, where a regurgitation of the charge
sheet.
No particular questions were put to the accused that point to
questioning that could in the premises have indicated
to the
magistrate that the accused had specific knowledge of the crime
and admitted the specific elements of housebreaking,
more
specifically in the face of the failure of the magistrate to
question the accused as to “how” he broke in.
[4] This was a
crucial question on the charge the accused faced as housebreaking
is only committed when a structure is penetrated
by removing or
breaking open a door, a window or any other hindrance that would
give a person access to the building
or house, otherwise the
crime would only be one of theft.
[5] As to the
sentence, the magistrate was questioned as to if the sentence was
appropriate and in accordance with justice,
due to the fact that
the state did not prove any previous convictions. In spite of
this the magistrate had regards and
took cognisance of the
accused very relevant previous conviction of housebreaking, for
which he received a suspended sentence.
The accused admitted
such under cross examination by the state, in mitigation of his
sentence. This is reflected in imposing
a sentence 24 months
direct imprisonment, to the accused, a 1
st
offender.
[6] The magistrates
was requested to answer under which section of the CPA , or the
Constitution, did he allow this incriminating
evidence and took
cognisance thereof, and mentioned such in the sentence imposed.
[7]
The magistrates in answering the questions posed by the
reviewing judge, conceded that the questioned posed were not
such
that one could determine the true guilt of the accused, and
submitted that he would ‘guide”
sic,
guard
against it in future, and stated that as there was no prejudice
suffered, the conviction must be confirmed.
[8] The magistrate
answered as to considering the previuos conviction in sentence,
that the sentence was justifiable even if
the accused was treated
as a first offender.
[9]
The office of the DDP also provided comment in the review
and confirmed that the legal position of questioning in terms
of
Section 112(1) (b) of the CPA, it was trite in that such
questioning ought to be such that the trail court can establish
whether the accused is truly guilty of the offence he /she is
pleading guilty to. This was set out in
Mkhize v
the State & Another
1981 (3) SA 585
(N) at 586D -578A;
where
Broom J referred to a passage in
S
v Witbooi & Others 1978 (3)SA 590 (T)
“
Section
112 (1)(b) and Section 112(2) and (3) are primarily concerned with
the facts of the case and to ensure that an accused person
is
guilty of the offence to which he has pleaded guilty and also to
ensure that he is properly sentenced on the true
facts of the
case. It follows that, where a magistrate acts under the
provision of these sections, he should follow a course
that
would enable him to ascertain the true facts of the case.
The course
recommended is to question the accused himself with reference to the
alleged facts of the case in order to ascertain
what his version
is so that the prosecutor can know whether the account of the accused
agrees with the evidence he has
at his disposal. If his account
does not agree with the evidence of the prosecutor which
the persecutor has available,
the prosecutor may then decide to
place his evidence before court and it will then be for the
court to adjudicate upon the
facts of the case.
Vide:
Mudau v S (276/2013)
[2013] ZASCA 172
delivered
on 28 November 2013
[10]
The DDP in their remarks to the reviewing judge confirmed that
the magistrate in the matter
in
causa
did
not obtain facts from the accused regarding the offence, and
that the trial court simply framed the questions in accordance
with the charge sheet and the accused with the exception of one
answer mainly answered,” I admit”
[11] The DDP also
agreed that in view of the above and our constitution, the right
of the accused to a fair trial is doubted.
The DDP also confirmed
that where a conviction and sentence under Section 112, are set
aside on review, and it is found
that any provision of Section
112 (1) (b) of the CPA were not complied with, the court shall
remit the case back to the trial court,
and direct the trial
court to comply with the provisions in question, or act in terms
of Section 113.
[12] The DDP did not
address the issue of the previous convictions of the accused
being considered by the trail court.
[13] I direct
therefore that the trial court cannot take notice of any
previous convictions of the accused not formally
proven by the
state against the accused.
I
therefore make the following order:
1. The conviction
and sentence is set aside
2. The matter is
referred back to the trial court.
3.
The trial court is ordered to question the accused in accordance with
Section 112 (1) (b) of the CPA, and with due regard
to the cases of
Mudau, Mkhize and Witbooi.
4.
The trial court in the event of finding the accused guilty should
not have regards to any previous convictions, and treat
the
accused
as
first
offender, unless such previous convictions are proven by the state.
5. On date
of sentencing the accused, in the event of conviction, the trial
court should have regard to the incarceration
of the accused since
24 June 2014, and this should be reflected in the sentence imposed.
SO ORDERED.
S STRAUSS
ACTING JUDGE OF THE
HIGH COURT
I agree,
CONFIRMED BY: DE
JAGER NF
ACTING JUDGE OF THE
HIGH COURT