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South Africa: Free State High Court, Bloemfontein
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2006
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[2006] ZAFSHC 165
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S v Mbaba (70/2006) [2006] ZAFSHC 165 (16 November 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special Review No. :
70/2006
In
the review between:-
THE
STATE
versus
THABO
DAVID MBABA
_____________________________________________________
CORAM:
WRIGHT
J
et
VAN
ZYL J
JUDGMENT
BY:
WRIGHT
J
_____________________________________________________
DELIVERED
ON:
16
NOVEMBER 2006
_____________________________________________________
A letter was received
from the acting regional court magistrate reading as follows:
â
1. The accused was charged with the
offence of Housebreaking with intent to Rape and Rape.
2. The
accused pleaded guilty as charged. The defence attorney then handed
a statement in terms of section 112(2) of Act 51 of 1977
and the
Public Prosecutor accepted the plea of the accused.
3. On 10 October
2006 the accused was convicted
as
charged
.
4. It is my respectful submission that
the conviction is not correct. Based on the statement in terms of
section 112(2) of Act 51
of 1977, the accused was supposed to be
convicted of Rape only. The section 112(2) statement lacked the
necessary factual basis
which could have satisfied the court that the
accused was guilty to Housebreaking with intent to Rape. No
admissions were made as
to a common purpose or conspiracy to commit
the crime of House Breaking with the intent to Rape.â
In
view of the last paragraph it is necessary to set aside the
conviction and to replace it with a conviction of rape.
With regard to the last
paragraph of the magistrateâs letter, the accused must be sentenced
in accordance with the charge sheet
to which he pleaded guilty (even
if that charge sheet may be inadequate).
The
conviction is therefore set aside and replaced with a conviction of
rape.
______________
G.F. WRIGHT, J
I
agree.
____________
C.
VAN ZYL, J
/sp