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2005
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[2005] ZAFSHC 60
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S v Popo (634/2005) [2005] ZAFSHC 60 (23 June 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 634/2005
In
the review between:
THE
STATE
versus
MYAMO
MICHAEL POPO
_____________________________________________________
CORAM:
RAMPAI
J
et
VAN
DER MERWE J
JUDGMENT:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
23
JUNE 2005
_____________________________________________________
[1] The charge against
the accused was contravention of section 17(a) Domestic Violence Act
No. 116/1998. Apparently a protection
order was issued against the
accused at Tshepong on 23 March 2004 prohibiting him from physically
or emotionally abusing the complainant.
It was alleged that the
protection order was duly served on the accused. It was further
alleged that the protection order or abusive
behaviour interdict was
still in force.
[2] The
first difficulty I have with the matter is that the first leg of the
charge was not properly formulated for instance the following
defects
will highlight my concerns:
In which magisterial
district is Tshepong?
What was the identity of
the victim the order sought to protect from abuse?
When was the protection
order served on the accused?
It is necessary to aver
in the charge sheet that the protection order was still in force as
on 5 December 2004. Such an averment
provides the legal nexus
between the protective order and the subsequent abusive behaviour of
the accused.
[3] The second difficulty
I have is that the magistrateâs questioning in terms of section
112(1)(b) of the Criminal Procedure Act
No. 51/1977 was restricted to
the accusedâs subsequent abusive conduct of 5 December 2004 and
virtually no question was asked to
show that by behaving as he did he
thereby violated an existing protection order which prohibited him
from abusing a specified person.
[4] Needless to say the
victim as specified in both the protective order and the subsequent
violation or charge sheet must be one
and the same person. Care
should be taken not to treat cases of domestic violence as though
they were ordinary cases of assault.
The offender, in certain
circumstances, may first have to be convicted and sentenced for the
subsequent assault separately and thereafter
be again convicted and
sentenced for the violation of the existing protective order. The
situation is more or less analogous to
the situation in cases
involving breach of an existing maintenance order.
[5] In her response to my
query the court
a
guo
concedes that the questioning of the accused in terms of section
112(1)(b) of Act No. 51/1977 was inadequate. Her request is that
I
should set the conviction and the sentence aside.
[6] Her concession and
her request are meritorious. The charge sheet was materially
defective. The defects remained uncured even
after the judicial
questioning in terms of section 112(1)(b). The questioning in terms
of section 112(1)(b) should be thoroughly
done and fully recorded.
(Vide
S
v MAXEKWA
1978 (1) SA 419
(O) at 420E and Du Toit
et
alii
:
Commentary on the Criminal Procedure Act (2004) ed at 17 â 19.)
Such proceedings were not in accordance with justice. Therefore
I
would set the entire proceedings aside in accordance with the request
of the magistrate.
[7] Accordingly I make
the following order:
The conviction and the
sentence are set aside.
The matter is remitted
to the court
a
quo
so that the magistrate can now deal with it in terms of section 312
Criminal Procedure Act No. 51/1977.
______________
M.H.
RAMPAI, J
I agree.
________________________
C.H.G. VAN DER MERWE,
J
/sp