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South Africa: Western Cape High Court, Cape Town
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[2008] ZAWCHC 95
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Strauss v S (A47/2008) [2008] ZAWCHC 95 (8 August 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NUMBER
:
A47/2008
DATE
:
8
AUGUST 2008
In
the matter between:
GAVIN
STRAUSS
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
NDITA,
J:
This
is an appeal from the judgment of the magistrate sitting in Goodwood
in which the appellant was convicted of theft and sentenced
to eight
months imprisonment, which was wholly suspended on the regular
conditions.
The
factual background is briefly as follows. The allegation of theft
against the appellant was that he stole out of the car a DVD
player
belonging to Mercia Lawrence. On 12 May 2006, he pleaded guilty to
the charge. His legal representative handed in a document
purporting
to be a statement in terms of
Section
112(2) of the Criminal Procedure Act 51/1977, whereupon the Court
convicted him on his plea
In
that statement it is clear that the appellant took the DVD player in
order to draw the attention Inspector Cady regarding
payment
of a sum of R50 000 which had been deposited in his account. Upon
the advice of the police the appellant had in fact returned
the DVD.
The
magistrate misdirected himself by convicting the appellant
on
the basis of the statement, which clearly does not sufficiently
establish that the appellant had the necessary
mens
rea.
The
conviction should therefore, be set aside and Section 113 should
have been applied in these proceedings.
In
the circumstances the following order will issue. In terms of
Section 212 of the Criminal Procedure Act, the conviction and
sentence imposed by the magistrate is hereby set aside. The matter
is remitted to the magistrate to comply with the provisions
of
Section 113.
NDITA,
J
I
Agree
VAN
HEERDEN, A J