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[2012] ZAFSHC 169
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S v Macholo (291/2012) [2012] ZAFSHC 169 (13 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 291/2012
In the review between:
THE STATE
and
TIISETSO HANS
MACHOLO
_____________________________________________________
CORAM:
HANCKE, AJP
et
KRUGER, J
_____________________________________________________
JUDGMENT BY
:
KRUGER, J
_____________________________________________________
DELIVERED ON
:
13 SEPTEMBER 2012
_____________________________________________________
[1] A regional magistrate
sent this matter for review under
section 304A
of the
Criminal
Procedure Act 51 of 1977
, which
inter alia
provides that if a
regional magistrate after conviction but before sentence is of the
opinion that the proceedings are not in accordance
with justice or
that doubt exists whether the proceedings are in accordance with
justice, the regional magistrate sends the matter
for review without
sentencing the accused. In this case the accused was charged with the
theft of a motor vehicle. He was legally
represented and pleaded
guilty in terms of a written statement under
section 112(2)
signed by
him.
[2] The plea explanation
reads as follows:
“
I the
undersigned
Tiisetso Hans Macholo
Do hereby state as follows:
1.
I plead guilty to theft of a motor
vehicle as charged to wit, a Toyota Corolla, with registration Letter
and Numbers DWF119FS
2.
I admit that:
upon or near Peet Avenue and within
the jurisdiction of the above Honourable Court I did unlawfully and
intentionally steal
a motor vehicle described in one above;
the aforesaid vehicle was the
property of or in lawful possession of Thabang Thatseng ; and
I intended to permanently deprive
Thabang Thatseng ownership and possession of the said vehicle.
The facts upon which I plead guilty
are as follows:
3.1 on the date and place mentioned in
2.1 above I was walking along Peet Avenue;
3.2 as I was walking along the above
said street I passed by a vehicle described in one above;
3.3 as I was going pass the above said
vehicle I noticed that it was not locked and I opened the door,
entered the vehicle and started
it using a knife I had earlier bought
in town and drove to Cairo Location in Bloemfontein; and
3.4 I drove the said vehicle around
the above said Location for three days until I was arrested by the
police.
4.
No one gave me the permission to take
or steal the above-mentioned vehicle and at all material times, I
knew that what I was doing
was unlawful.
5.
I plead guilty freely and voluntarily
and without being influenced to make this plea.
SIGNED AND DATED AT BLOEMFONTEIN ON
THE 12
TH
DAY OF APRIL 2012”
[3] At the outset the
plea explanation was read into the record but the magistrate
questioned Mr Buthelezi, the accused’s
legal representative on
the use of the words “unlawful” or “wrongful”
in the charge sheet and the
section 112(2)
statement. Then the
magistrate wanted to know how the accused got the vehicle started.
After consulting with the accused the words
that the accused used a
knife to get the vehicle started were added into the
section 112(2)
statement, but the magistrate was “not satisfied with the
appearance of the plea”. She said: “It must be drawn
up
in a more neater fashion so that the court can see what is written in
it alright?”. She postponed the matter to the next
day.
[4] On the second day the
plea explanation was again read into the record. After that, the
magistrate asked Mr Buthelezi whether
the plea explanation stated
that the accused pleaded guilty freely and voluntarily. Mr Buthelezi
said it did not and he added the
words in paragraph 5 in the
manuscript. Amendments to the name of the complainant and the
registration number of the vehicle were
also made in manuscript at
that stage. Thereafter the plea explanation was read into the record
for the third time. The magistrate
enquired whether the accused
signed at the alterations and the accused confirmed:
“
Court:
Alright accused do you find the contents of this statement to be
true, to be correct that you agree with it and that…
Accused:
Correct Your
Worship.
Court:
And that you
signed it.
Accused:
Yes Your
Worship.”
[5] Thereafter the court
gave judgment and convicted the accused of theft as charged and
stated:
“
Accordingly
the court is satisfied that the accused has correctly pleaded to the
elements of the offence of theft and he is convicted
as charged.”
[6] The accused testified
in mitigation. The following transpired:
“
COURT:
Accused when the court asked you about your plea, whether you confirm
the facts to be true, to be correct, do you agree with it,
you said
you stole the vehicle, you intended to permanently deprive the owner.
Is that still the position? --- Yes, correct so.
So you agree that you are still
pleading guilty? --- Yes.
Based on the fact that you pleaded to
him that plea agreement, in the 112(2) statement? --- Yes.
That you are the one guilty, you stole
this vehicle, is that what you are telling the court? --- Yes.
You do not want to change your plea to
one of not guilty? --- Yes.
You do not want to change it? --- No.
So the plea of guilty must stand
because you say you are guilty and the court has accordingly accepted
the facts to which you have
pleaded guilty? --- Yes.”
[7] During argument the
magistrate put to Mr Buthelezi:
“
COURT:
It also is clear to the court that the accused’s parole
supervision finished in 2010 when he was released and he committed
this offence in 2011. So it seems like he watches very closely when
his parole supervision finishes.
…
COURT:
The court just
want to clarify from the accused, it is very important as to what was
the reason for him stealing this car?
MR BUTHELEZI:
The court
wants my attitude towards that?
COURT:
Do you have
anything to say about it?
MR BUTHELEZI:
Yes, I
wanted to, no I have got nothing to say of that.
COURT:
Well, I need to
know from him why did he steal the car.
MR BUTHELEZI:
Yes, the
court may proceed.
COURT:
Accused why did
you steal this vehicle?
ACCUSED:
Your worship
actually I was not intending to steal … (inaudible) but after
noticing it or seeing it then it came to my mind
that Thabang has
promised me to give me R500 if I can get him somebody who can rent
him a taxi. I just … (inaudible)
COURT:
So then he
decided to steal a vehicle so that he could give it to Thabang?
ACCUSED:
No, after
seeing this vehicle I then took it and drove away with it.
MR BUTHELEZI:
Your
worship may I assist the court ….(intervenes)
COURT:
Thabang is the
complainant in this matter?
ACCUSED:
Correct your
worship.
COURT:
You said in your
plea explanation you intended to permanently deprive him of this
motor vehicle?
ACCUSED:
No, I was not
taking it permanently. Where it is written like that then it was not
read back to me.
COURT:
Did your attorney
not go through the statement with you?
ACCUSED:
No.
COURT:
Now Mr Kopa the
accused now will have to change his plea?
PROSECUTOR:
Your worship
then it will mean I will have to call the witnesses to prove that
particular point of the intention to deprive.
COURT:
No, it also means
the court will have to recuse itself because I have already had
insight into his previous convictions.
PROSECUTOR:
Yes your
worship.
COURT:
The matter will
have to start
de novo
before another magistrate.
PROSECUTOR:
I will have
to transfer it.
COURT:
Draw up a new
J.15 so it can be put on that new J.15 and send to another court. Do
you not have J15’s here?
PROSECUTOR:
No, I do not
your worship.
COURT:
Mr Makopane just
check please. Alright accused the court cannot change your plea at
this stage to one of not guilty because it
cannot hear the evidence
led by the state as I have already had insight into your previous
convictions. That could be prejudicial
to you, so the matter will
start
de novo
. The court will firstly recuse itself in this
matter and the matter will start
de novo
before another court
with you in custody. Where is the J.15? Alright the matter is
remanded 7 May 2012, Court 18 for you to appear
in the trial court.
You are in custody with no bail.
COURT ADJOURNS.
”
[8]
Section 113
of Act 51
of 1977 provides that if the court at any stage in proceedings under
section 112(2), and before sentence is passed is
in doubt whether the
accused is in law guilty of the offence to which he has pleaded
guilty, the court records a plea of not guilty.
It was held in
S
v MBOTHOMA
1978 (2) SA 530
(O) that where
the court has seen the previous convictions of the accused, it is
advisable not to resume the trial, and in such
case the proceedings
should be set aside on review and re-convene before another judicial
officer.
[9] Every case must be
dealt with according to its own facts. When an accused during
mitigation says something which is in all the
circumstances clearly
untruthful, that cannot form the basis for doubt as to his plea of
guilty. That is what happened in this
case.
[10] I have difficulty to
understand on what basis the regional magistrate developed a doubt as
to the accused’s guilt. He
stole the car using a knife. He
drove around with the car for three days until the police stopped
him. He said in his evidence
that he needed money to start a stall.
There is no indication that the accused had any intention other than
to deprive the owner
of possession permanently.
[11] The magistrate does
not explain the reason for the delay in sending this case from April
2012 up to September 2012. The state
witnesses might by this time
have disappeared. It is not in the interests of justice that this
matter be further delayed.
[12] The magistrate asked
the accused whether he wanted to change his plea, and he said no.
Further, it is difficult to understand
what evidence will change
here. The accused has admitted that he hot-wired the stolen car and
that he kept if for three days. The
only inference to be drawn from
those facts is that the accused intended to steal the car and deprive
the owner of possession permanently.
[13] A judicial officer
is not expected to be supine (
TAKE AND SAVE
TRADING CC AND OTHERS v STANDARD BANK OF SA LTD
2004
(4) SA (SCA) 1 para [3]). There was no reason for the magistrate to
passively, in a submissive manner accept the spurious allegation
of
the accused that his counsel had not read over the section 112
statement to him. The presiding officer was in court when the
statement was read out, in the presence of the accused, three times.
She asked him expressly whether he intended to deprive the
owner of
the car permanently of possession, and the accused said yes.
[14] The accused signed
his plea explanation, and it was read out in court in his presence.
To the initial question of the magistrate
he responded that he
intended to steal the car and keep it. His intention can be inferred
from his actions. The inference that
the accused intended to deprive
the owner permanently of his car is irresistible. There is no basis
to interfere with these proceedings.
[15] I am satisfied that
these proceedings were in accordance with justice and that it is in
the interests of justice that the matter
be disposed of and the
accused be sentenced.
[16]
ORDER
The conviction is
confirmed and the matter is remitted to regional magistrate Soomaroo
for her to sentence the accused.
_____________
KRUGER, J
I concur.
__________________
S.P.B. HANCKE, AJP
/EB