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[2010] ZAFSHC 99
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S v Mlambo and Others (371/2010) [2010] ZAFSHC 99 (9 September 2010)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Review No. : 371/2010
In
the review between:-
THE
STATE
and
CLEMENT MLAMBO
MOTLAI MAKHETE
MARCO SITHOLE
MATTHEWS ARIAS
OSCAR TSIO
SECHOMANE MAKOKO
SOLOMON SITHOLE
JARIOS MLAMBO
LEBOHANG THAKANE
TEFASKO GOMBO
BENNETT TERIVY
JOHANNI MLAMBO
_____________________________________________________
CORAM:
KRUGER et JORDAAN, JJ
_____________________________________________________
JUDGEMENT:
KRUGER, J
_____________________________________________________
DELIVERED
ON:
9 SEPTEMBER 2010
_____________________________________________________
[1] The magistrate sent this case on review with the
request (i) that the name of Accused no. 3 as a person convicted and
sentenced
be deleted from the J15, and (ii) that the names of Accused
no’s 6 and 7 be inserted on the J15 as persons convicted and
sentenced.
[2] Some of the above-mentioned accused were convicted
of (i) trespassing under Act 6 of 1959 and (ii) unauthorised
borrowing under
Act 50 of 1956. In all cases the sentence was a fine
of R1600 or 12 months’ imprisonment.
[3] Confusion reigns supreme in the record of these
proceedings. The confusion in respect of accused no. 3 seems to have
arisen
because accused no. 4, Matthews Arias, was described as
accused no. 3. (see p. 13).
[4] The J15 states:
“
Accused 1, 3, 4, 8, 9, 11
guilty on both counts.”
The magistrate in his letter dated 9 July 2010 says the
J15 should state that the accused convicted are:-
1, 4, 6, 7, 8, 9, 11.
[5] I sent a query to the magistrate pointing out the
difficulties I had.
[6] The magistrate responded as follows:
“
Indeed the confusion in the above mentioned
matter caused a serious prejudice.
I concur with the finding of the Honourable Judge that all the
convictions be set aside for the reasons advanced. May I ask that
the
convictions be set aside.”
[7] The first question which arises is: Can the name of
an accused which was not on the J15 as a convicted and sentenced
person,
be inserted later as a person who was convicted and
sentenced?
[8] Convicting and sentencing an accused is not simply a
matter of inserting the name of the accused as a convicted person on
the
J15. An accused is found guilty by the court in its judgment. The
entry on the J15 is a matter of record keeping; that entry is
not the
conviction.
[9] Especially where there are multiple accused,
judicial officers must keep a meticulous record. It is generally not
a good idea
to change the numbering of the accused after the
proceedings have commenced.
[10] The next question is whether the section 112(2)
statements cover all the elements of the offence, in particular that
the borrowing
was done “with intent to use it for their own
purpose”.
[11] When a written plea of guilty is handed in under
section 112(2), the presiding officer must ensure that all the
elements of
the charge have been admitted. In this case the second
charge, unauthorised borrowing constituting a contravention of
section 1(1)
of the General Law Amendment Act 50 of 1956 criminalises
removal of an object without the owner’s consent, with intent
to
use it for the borrower’s own purposes. This intent is an
element of the offence, and should be admitted in the plea. In this
case, in the section 112(2) statements handed in, there is no
reference to the intent of the borrower (accused). The magistrate
could not convict on that statement, and should have directed further
enquiries to the accused. The usual remedy for non-compliance
with
section 112 is referral back to the magistrate under section 312, but
because of the total confusion in this record, the proper
recourse,
to avoid prejudice to the accused, as the magistrate suggests is to
set all the convictions and sentences aside.
[12] In the result the convictions and sentences of all
the accused are set aside.
____________
KRUGER, J
I agree.
_______________
A. F. JORDAAN, J
/wm