About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2008
>>
[2008] ZAFSHC 75
|
|
S v Makoko and Another (191/2008) [2008] ZAFSHC 75 (26 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 191/2008
In the case between:
THE
STATE
and
R
ASETSHEGO
MAKOKO AND ANOTHER
_______________________________________________________
CORAM:
H. M. MUSI, JP
et
MOCUMIE,
J
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
DELIVERED
ON:
26 JUNE 2008
_______________________________________________________
REVIEW
JUDGEMENT
[1]
The
matter was sent on special review by the presiding officer who
presided in the matter. Although it was not sent in the prescribed
manner with a covering letter from the Senior Magistrate, the latter
subsequently sent one in which he indicates the following:
“
The
above stated case is
submitted for Special Review to the Honourable Reviewing Judge, as
the Magistrate who presided expresses some doubts in respect
of her
conviction of the Accused on related charges.
The
Magistrate(‘s) circumvention of the Head of Court will be
addressed with her once she returns from leave and hopefully
this
will not recur.”
[2] The two accused
appeared in Thaba Nchu Magistrate Court on two counts of robbery –
accused 1 pleaded guilty to both
counts and accused 2 pleaded guilty
to one count only. Both were convicted as charged on both counts on
4 January 2008 and sentenced
to 18 months imprisonment wholly
suspended on certain conditions.
[3] The
presiding officer correctly invoked section 112(1)(b) of the
Criminal Procedure Act 51 of 1977 (“the CPA”)
during
which questioning both accused admitted all the elements of the
charges preferred against them i.e. accused 1 in respect
of both
counts and accused 2 in respect of one count only. The admissions
were in accordance with the State’s case. The
prosecutor
accepted the plea in respect of both counts as admitted by the
accused. But then the presiding officer convicted
both accused in
respect of both counts.
[4] This
is clearly a mistake and an oversight on the part of the presiding
officer which could and should have been corrected
immediately when
it came to her attention. But obviously judging from the date of
conviction and the date on which the matter
was sent for review to
this Court, a lengthy period had lapsed forcing the presiding
officer to refer the matter to this Court
of intervention.
[5] Despite
the presiding officer’s view that she should not have
convicted accused 1 of robbery, I am of the view that
she was
correct to convict him of robbery even in respect of count 2. See
Criminal
Law,
Snyman, fourth edition at 506 for a definition of robbery. The
definition covers even the so-called grab-and-run cases as in
this
case in count 2 to which accused 1 pleaded guilty and admitted all
the elements of the offence.
[6] I
however share the same view with the Presiding Officer with regard
to count 2 in respect of accused 2. The prosecutor accepted
the
plea as tendered. Count 2 naturally fell away and thus accused 2
could and should not have been convicted thereof.
[7] In the circumstances
I make the following order:
Order:
The conviction in
respect of count 2 in respect of accused 2 is set aside.
The conviction and
sentence in respect of count 1 in respect of accused 2 are
confirmed.
The convictions and
sentence in respect of count 1 and 2 in respect of accused 1 are
confirmed.
_____
___________
B. C. MOCUMIE, J
I concur.
________________
H. M. MUSI, JP
/em