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[2014] ZAFSHC 150
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S v Raisi (133/2014(B)) [2014] ZAFSHC 150 (14 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No: 133/2014(B)
In the
review between:
THE
STATE
and
KGOTHATSO
JOEL RAISI
CORAM:
KRUGER, J et MOTLOUNG, AJ
JUDGMENT:
KRUGER, J
DELIVERED
ON:
14 AUGUST 2014
REVIEW JUDGMENT
[1] The
accused was charged with robbery in the magistrates’ court at
Hoopstad. According to the record the accused
was asked what he
“intended” to plead. He said: “Not guilty”.
The court then asked: “Just
make up your mind, do you
still intend to plead guilty?”. The accused responded: “I
plead guilty because I fought
with the complainant.” The
state accepted the “plea” and asked that the matter be
disposed of in terms
of section 112(1)(a). The accused was then
convicted and sentenced to R1 000 or two months’ imprisonment,
wholly suspended
without either the state or the accused being
afforded an opportunity to address the court or adduce evidence in
mitigation of
sentence. The same thing happened regarding the
automatic declaration of the accused as being unfit to possess a
firearm.
[2] The
matter was sent on Special Review by the senior magistrate at Welkom.
She points out that at no stage was the charge
ever put to the
accused and he was not asked whether he understood the charge. She
also points out that the accused disclosed
a defence during his plea.
At no stage were the rights of the accused before sentence
explained to him. He was not
given an opportunity to address
the court before sentence. The senior magistrate says that
robbery is a serious offence,
which it undoubtedly is, and the
accused was not given an opportunity to prepare. Further,
section 112(1)(a) should only
be used for minor crimes, as was
pointed out in
S v Khoalane
2012 (1) SACR 8
(FB). The
senior magistrate says, correctly, that section 112 (1)(b) should
have been employed, and the accused should have
been questioned.
Then it would have appeared that the accused did not admit all
the elements of the offence, and a plea of
not guilty would have been
entered.
[3] In
this case the number, nature and extent of the irregularities are
such that the conviction and sentence should simply be
set aside.
The rights of the accused were disregarded at a number of
stages, and the accused should not have been convicted
or sentenced
without being afforded a fair trial.
[4]
This court agrees with the senior magistrate regarding the
irregularities that were committed as to:
(1) The charge should have been stated to the accused
after which he should have been asked if he understood it and
followed by
being asked whether he pleaded guilty or not guilty
thereto.
(2) Section 112(1)(a) was not an appropriate procedure
to follow in this case as a charge of robbery is not a minor offence,
and
the procedure prescribed in section 112(1)(b) should have been
followed in the light of the seriousness of the offence.
(3) Both the state and the accused should have been
afforded an opportunity to address the court and adduce evidence in
aggravation
or mitigation of sentence, before passing sentence in
respect of the offence charged and the automatic disqualification to
possess
a firearm.
[4]
ORDER
1. The
conviction and sentence are set aside.
_____________
A.
KRUGER, J
I
agree.
___________________
I.M.M.
MOTLOUNG, AJ