About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 318
|
|
S v Mathiba (280/14, A389/14) [2014] ZAGPPHC 318 (3 June 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: Review 280/14
CASE
NUMBER: A389/14
DATE:
03 JUNE 2014
THE STATE
v
GIDEON ZOBO
MATHIBA
REVIEW JUDGMENT
BAM J
1. On 6 March 2014
the accused was convicted in the Magistrate's Court, Hammanskraal,
district Wonderboom, on a charge of theft,
and sentenced to 3 years
imprisonment which was conditionally suspended for 5 years. One of
the conditions was that the accused
had to compensate the plaintiff
in the amount of R20 000.
2. The matter was
sent on review and received by the Registrar on 28 March 2014.
Prinsloo J, who dealt with the review, directed
an enquiry to the
magistrate and enquired whether theft was in fact proved. The
magistrate duly responded and conceded that theft
was indeed not
proved. The matter was then forwarded to the Director of Public
Prosecutions, {"DPP"), for comment. The
representatives of
the DPP, Advocates Mahomed and Van Jaarsveld, are in agreement that
theft had not been proved. It was however
suggested by the two
advocates that the matter should be remitted to the magistrate with a
direction that a plea of not guilty
in terms of section 113 of the
Criminal Procedure Act should be entered.
3. From the record
of the proceedings it appeared that the accused was not represented.
The accused pleaded guilty to the charge
of theft. A statement in
terms of the provisions of section 122(2) of the Criminal Procedure
Act (“CPA"), which statement
was apparently prepared and
drafted by a lawyer of Legal Aid on request by the public prosecutor,
was then read out by the interpreter.
Although the magistrate
enquired from the accused whether he had made the statement, which
the accused confirmed, and whether he
understood the contents, which
he did not confirm before the statement was read out, this procedure
is not recommended. It would
be advisable that the magistrate should,
from the bench, after having recorded the plea of guilty, proceed to
question the accused
in terms of the provisions of section 112(l)(b)
of the CPA.
4. However, from the
statement it appears that the accused entered into an agreement with
the complainant to sell him a stand. The
complainant handed an amount
of R20 000,00 to the accused but the accused was unable to comply and
the accused agreed to return
the money. The parties then agreed that
the accused will repay the complainant monthly in the amount of
R1000. The statement also
included an admission by the accused that
he knew that his actions were "unlawful and not justifiable".
5. Although the
accused, upon being asked by the magistrate, confirmed the contents
of the statement, I am in agreement with the
Magistrate and the State
Advocates that the statement lacks admission of all the elements of
the crime of theft. I also agree with
the State Advocates' contention
that “it appears that the matter resorts under the breach of a
contractual obligation".
6. It follows that
the accused's conviction and sentence should be set aside. It is
clear that the Magistrate should have entered
a plea of not guilty in
terms of the provisions of section 113 of the CPA. However, in view
of the fact that since the accused's
first appearance on 23 October
2013 the matter was remanded for a further 6 occasions before the
trial commenced. In view of all
the circumstances I therefore do not
deem it in the interests of justice that the matter should be
referred to the Magistrate to
further attend to the matter.
7. Accordingly I
make the following order:
The conviction and
sentence are set aside.
AJ BAM
JUDGE OF THE HIGH
COURT
28 May 2014
S POTTERILL JUDGE
OF THE HIGH COURT