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[2012] ZAGPPHC 95
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S v Chokoe (A405/2012) [2012] ZAGPPHC 95 (7 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
..
HIGH
COURT REF. NO.: 479
REVIEW
CASE NO.: 7/12
CASE
NUMBER: SH 456/10
case
Number:A405/2012
DATE:07/06/2012
In
the matter between:
THE
STATE
Vs
BONGANI
JOSEPH CHOKOE
REVIEW
JUDGMENT
TOLMAY.
J:
[1]
This matter came before me by way of a special review in terms of sec
304(4) of Act 51 of 1977, (the Act).
[2]
The accused appeared in the Benoni Regional Court on a charge of
housebreaking with the intent to steal and theft. On 28 February
2012
the accused was found guilty of contravening sec 36(1) of Act 62 of
1955 (possession of stolen property). The accused was
sentenced on
the same day to 18 months imprisonment wholly suspended for a period
of three years on condition that he "is
not convicted of the
same offence during the period of suspension".
[3]
The following transpired from a perusal of the record:
i.
According to the charge sheet and the transcription, the only charge
against the accused was housebreaking with the intent to
steal and
theft. After the charge was put to the accused,
accused was warned
of the competent verdicts that applied to the matter in terms of sec
36 and 37 of the Act.
ii.
The face of the charge sheet reflects a plea of not guilty to
housebreaking but guilty to possession of suspected stolen goods.
The
judgment reflects that the accused was found guilty of possession of
stolen goods.
Iii.
There is no indication that any alternative count was put to the
accused. The only reference made by the prosecutor was to
the
aforementioned competent verdicts.
iv.
The record indicates that the legal representative for the accused
indicated that the accused intended to make admissions which
are then
followed by the version of the accused, seemingly being the
admissions. The prosecutor then placed on record that the
admissions
be recorded in terms of sec 220 of the Act. This is immediately
followed by the judgment of the learned magistrate,
v. There is no
indication that the formal admissions were noted in terms of sec 220
by the court or any indications of as to whether
sec 115(2) of the
Act was followed or whether sec 112 was applied.
[4]
If the content of the admissions made by the accused is evaluated it
transpired that the elements of the crime of possession
of stolen
goods were not admitted, in that:
I.
The accused did not admit that he had to open the door in order to
enter into the house. If the door was open and the accused
entered
the house and took aside it items he could only have been found
guilty of theft.
ii.
It is also clear from the plea explanation that the accused did not
have the intention to permanently deprive the complainant
of his
ownership of the said items as he statecj that b* wanted to keep as
security for an amount of R500-00 owned to him by one
Eric.
[5]
In the light of the aforesaid the learned acting senior magistrate is
of the opinion that the judgment should be set aside and
referred
back to the court to start de novo. An opinion provided by the DPP
supports this view. I am also of the view that the
conviction and
sentence should be set aside.
[6]
In the light of the aforesaid I am of the view that the conviction
and sentence are not in accordance with the law and should
be set
aside.
[7]
Consequently I make the following order:
7.1
The conviction and sentence are set aside;
7.2
The matter is referred back to the Magistrate's Court Benoni for a
plea of not guilty to be entered and the matter to start
de novo.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
AGREE:
T
J RAULINGA
JUDGE
OF THE HIGH COURT