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South Africa: Free State High Court, Bloemfontein
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2011
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[2011] ZAFSHC 29
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S v Motseare (60/2011) [2011] ZAFSHC 29 (17 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 60/2011
In the review between:
THE STATE
and
ELIZABETH MPHO
MOTSEARE
_____________________________________________________
CORAM:
KRUGER, J
et
VAN DER MERWE, J
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
17 FEBRUARY 2011
_____________________________________________________
[1] The accused in this
matter was charged with two counts of theft. She pleaded guilty on
both counts and a statement in terms
of section 112(2) of the
Criminal Procedure Act, nr. 51 of 1977 was handed in.
[2] In the statement in
terms of section 112(2) the accused admitted theft of all the items
mentioned in count 1 but only some of
the items mentioned in count 2.
The prosecutor did not accept the plea in respect of count 2 and
indicated that he wished to present
the evidence of the complainant.
The magistrate then convicted the accused on count 1 and proceeded to
sentence the accused in
respect of count 1 to a fine R1 200,00 or 6
six months imprisonment wholly suspended for a period of two years on
condition that
the accused is not convicted of theft committed during
the period of suspension.
[3] The magistrate now
recognises that he erred in sentencing the accused on count 1. He
therefore requests that the sentence in
respect of count 1 be set
aside and asks for directions by this court as to how the matter
should proceed.
[4] I agree that the
sentence in respect of count 1 should be set aside. The plea of the
accused on count 2 must be regarded as
a plea of guilty to a lesser
charge. As the prosecutor did not accept this plea, a plea of not
guilty in respect of count 2 must
be entered and the trial must
proceed in respect of count 2. Only after the determination of the
guilt of the accused in respect
of count 2 or otherwise, must the
magistrate proceed to sentence the accused.
[5] In the result the
sentence in respect of count 1 is set aside and the matter is
remitted to the magistrate to be dealt with
in accordance with this
judgment.
_________________________
C. H. G. VAN DER
MERWE, J
I concur.
_______________
A. KRUGER, J
/eb