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2024
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[2024] ZAECMHC 71
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S v Macingwane (426/2023) [2024] ZAECMHC 71 (25 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MTHATHA)
Review Case Number:
426/2023
High Court Ref: 217815
THE STATE
And
MANDISA MACINGWANE
REVIEW JUDGMENT
RUSI J
[1]
The accused stood charged with theft in the Mt Fletcher District
Court. On 17 January
2024 she was convicted of this charge
pursuant to her plea of guilty and was sentenced on the same day. She
was legally represented
during the proceedings in which she was
convicted and sentenced.
[2]
This matter comes before this Court on special review as envisaged in
section 304(4)
of the
Criminal Procedure Act 51of 1977
as amended
(the CPA).
[3]
For reasons that will become clear in the course of this judgment, it
is as well to
reproduce the portion of record of the proceedings
encapsulating the plea proceedings against the accused, and I do so
hereunder:
‘
PROSECUTOR:
The accused is guilty of the crime of theft. In
that on or about 24 December 2023. And at or near PEP Store,
Mount Fletcher
in the district of Joe Gqabi. The Accused did
wrongfully and unlawfully steal, did wrongfully and intentionally
steal a pair of
a girl’s sandal, valued at R70.00. A pair of
girl’s attire . . . [indistinct] cost R160.00. A pair of
ladies’
shoes, takkies, costing R200.00. One spray costing
R50.00, Your Worship. Apologies for that. The accused had intent to
deprive
Andiswa of PEP Stores of possession permanently. [sic]
ACCUSED:
I understand the charge, Your Worship.
COURT:
How are you pleading to the charge laid against
you?
ACCUSED:
I plead guilty, Your Worship.
[4]
Annexed to the charge sheet is a list of the stolen items that was
compiled by the
police officer and the complainant. The sentence that
was pronounced by the court
a quo
during the sentencing
proceedings is reproduced in the excerpt below:
‘
.
. . The accused shall be sentenced to six (6) months imprisonment.
Wholly suspended for a period of three years if not convicted
of a
similar offence.’
[sic]
[5]
The record of the proceedings in the court
a quo
served before
me on 30 April 2024 at the request of the Magistrate, Mt Fletcher
District Court, for the special review. In the
relevant portion of
the request of the special review, the Magistrate states as follows:
“
1.
The accused was not invited to confirm
the contents of the
Section 112(2)
of Act 51 of 1977 Statement after
the same was read into the record and the signature thereon.
2.
On J15 the sentence is not clear as it reads as follows: Six months
imprisonment wholly
[sic] for a period of 3 years not committing
similar offences.
3.
Ex facie the J15 it cannot be concluded that the sentence was
suspended. Even
the condition of suspension is vague.
4.
The direction with regard to filing of the case record is D2
according to the
record and ordinarily it was supposed to be D7 if at
all the sentence is wholly suspended.”
[6]
It is indeed so that when an accused pleads guilty to the charge, it
becomes the duty
of the court to ensure that he admits all the
elements of the offence in question. The court must satisfy itself
that the accused’s
plea is in accordance with the law –
that is to say, he pleaded guilty correctly. This is so whether the
accused is legally
represented or not.
Section 112
of the
Criminal
Procedure Act 51 of 1977
as amended, governs the procedure followed
when the accused pleads guilty. The section provides that:
‘
112
(1) Where an accused at a summary trial in any court pleads guilty to
the offence charged, or to an offence of which he may
be convicted on
the charge and the prosecutor accepts that plea—
(
a
) the presiding
judge, regional magistrate or magistrate may, if he or she is of the
opinion that the offence does not merit punishment
of imprisonment or
any other form of detention without the option of a fine or of a fine
exceeding the amount determined by the
Minister from time to time by
notice in the
Gazette
, convict the accused in respect of the
offence to which he or she has pleaded guilty on his or her plea of
guilty only and—
(i)
impose any competent sentence, other than imprisonment or any other
form of detention without the option of a fine or a fine
exceeding
the amount determined by the Minister from time to time by notice in
the
Gazette
[1]
;
or
(ii) deal with the
accused otherwise in accordance with law;
(
b
)
the presiding judge, regional magistrate or magistrate shall, if he
or she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the
Gazette
[2]
,
or if requested thereto by the prosecutor, question the accused with
reference to the alleged facts of the case in order to ascertain
whether he or she admits the allegations in the charge to which he or
she has pleaded guilty, and may, if satisfied that the accused
is
guilty of the offence to which he or she has pleaded guilty, convict
the accused on his or her plea of guilty of that offence
and impose
any competent sentence.
(2) If an accused or his
legal adviser hands a written statement by the accused into court, in
which the accused sets out the facts
which he admits and on which he
has pleaded guilty, the court may, in lieu of questioning the accused
under subsection (1) (
b
), convict the accused on the strength
of such statement and sentence him as provided in the said subsection
if the court is satisfied
that the accused is guilty of the offence
to which he has pleaded guilty: Provided that the court may in its
discretion put any
question to the accused in order to clarify any
matter raised in the statement.
(3) Nothing in this
section shall prevent the prosecutor from presenting evidence on any
aspect of the charge, or the court from
hearing evidence, including
evidence or a statement by or on behalf of the accused, with regard
to sentence, or from questioning
the accused on any aspect of the
case for the purposes of determining an appropriate sentence.’
[7]
Relevant for the purposes of the present review are the provisions of
section 112(1)
(b)
and 112(2). It is evident from these
provisions that uppermost is the court’s duty is to ascertain
whether the accused admits
the allegations in the charge and to
satisfy itself as to the guilt of the accused.
[8]
On the face of the record of proceedings in the court
a quo
,
it does not appear that the accused, whose written statement in
support of her plea was read into the record in English, was invited
to confirm that what was read by her attorney correctly reflected her
admission of all the allegations in the charge against her.
Also
apparent from the record is that the court and the accused had the
benefit of a court interpreter whom I must assume would
have
interpreted the statement from the language of record to whatever
language of the accused’s choice.
[9]
It must be borne in mind that a statement in support of a plea
contains admissions
of fact and law which would form the basis of the
court’s finding as to the guilt of the accused. In as
much as the
accused was represented by an attorney, it is sound
practice, in criminal proceedings to invite an accused to confirm the
contents
of the plea statement that has been read on record on his or
her behalf, and to confirm the fact that he is the person who signed
it.
[10]
Over and above providing clarity to the court that the accused has
pleaded guilty correctly,
there is an added advantage to this
practice – it obviates a situation where even though an
attorney was instructed by an
accused to tender a plea of guilty on
his/her or behalf, that accused later willy-nilly disavows the
admissions of fact and law
made in the statement that he/she accused
made in support of his/her plea.
[11]
In omitting to invite the accused to confirm that what was read on
the record was indeed her
admissions of the allegations made against
her in the charge, the learned magistrate committed an irregularity.
However, this is
not the end of this Court’s enquiry, the
question which follows is whether the accused’s conviction is
vitiated by
the irregularity, i.e. whether she was prejudiced by the
omission that it may be said that an injustice was done. I think not,
for the reasons I set out hereunder.
[12]
When the prosecutor put the charge to the accused, she indicated that
she understood it. Asked
how she was pleading to the charge, the
accused indicated that she was pleading guilty. The plea she tendered
was followed by a
confirmation given by her legal representative that
the plea accorded with the instructions he held from the accused. The
material
portion of the plea statement of the accused which her legal
representative went on and read on record is reproduced below:
“
I
am the accused in this matter and I understand the charge against me.
I make this statement freely and voluntarily and without
any undue
influence to the same. I am guilty of the crime of theft that on 25
December 2023 at PEP Stores in the district of Joe
Gqabi. I did
wrongfully and intentionally steal one sandal, ladies takkies, a
spray valued at R480, 00. With the intent to
defraud [sic] the
owner permanently. The items belong to PEP Stores or Andiswa.
On the day in question
I went to PEP Stores. I took the said items. I concealed them in my
handbag without purchasing for [sic]
them. Then the lady asked the
possession, about the items that were in my possession. And they were
found in my handbag. Then I
was arrested. At all material times I
understood that my actions were wrongful and unlawful. And I have no
defence in law to justify
my actions. And my actions are punishable
by law. I humbly request the Honourable Court to be lenient on me
when imposing sentence.
I am remorseful for my actions.”
[13]
It bears mentioning that the accused’s attorney was present in
court in order to protect
the interests of the accused,
inter
alia
. What immediately emerges from the record is that after the
charge was put to her, the accused immediately indicated that she was
pleading guilty to the charge which she had earlier confirmed she
understood.
[14]
I have read the original document appearing to be the hand written
statement of the accused in
support of her plea of guilty, it has
been signed by the accused and her legal representative. The items
enumerated in the charge
which the accused indicated she understood
and in respect of which she pleaded guilty to the offence of theft,
save for one (namely,
“a pair of girls attire”) are
contained in her plea statement.
[15]
The rest of the facts contained in the plea statement relate to how
she committed the theft.
These constitute facts relevant to the facts
in issue and in turn serve to enable the court’s conclusions of
fact and law,
viz, the intention to steal (
mens rea
) and the
absence of consent or legally recognized right to appropriate the
items, as well as the act of appropriation, respectively.
[16]
It is my finding that no prejudice was suffered by the accused in the
circumstances of this specific
case. Her conviction has not been
vitiated by the judicial officer’s failure to invite the
accused to confirm the contents
of her plea statement. There is
therefore no reason to tamper with the conviction of the accused.
[17]
Concerning the sentence that the learned magistrate imposed, a
restatement of the principles
governing the imposition of a suspended
sentence is necessary. The starting point is
section 297(1)
(b)
of the CPA which entitles the court to suspend a sentence for a
maximum period of five years on various conditions. As held in
S
v Koko
[3]
,
a suspended sentence serves a twofold purpose. It avoids a repetition
in the future of the criminal conduct that an accused has
been
convicted of; and avoids the harmful consequences that direct
imprisonment may have.
[18]
Great care must be taken in setting out conditions of suspension of
the operation of a sentence.
They must be set out in clear and
precise terms.
[4]
There is good
reason for this. The accused must know what conduct he must avoid
during the period of suspension to avoid the suspended
sentence being
put in operation.
[19]
Equally important is the requirement that the condition of suspension
of sentence must bear some
relationship to the circumstances of the
crime which is being punished by the imposition of a suspended
sentence.
[5]
A phrase such as
“similar offence” is vague and far reaching in nature as
it may in the future result in the accused
being punished for
offences that are far removed from the theft she was punished for.
The importance of circumspection in setting
out the conditions of
suspension of sentence can never be over emphasized when regard is
had to how the proper administration of
justice could be hampered if
the sentencing court fails to exercise the required degree of care.
[20]
In as much as it is evident that the learned magistrate’s
intention was to wholly suspend
the period of six months’
imprisonment, the conditions on which it was suspended are vague. In
this regard, the sentence
falls short in setting out in clear terms
what criminal conduct the accused must eschew, and what the
consequences of her failure
to avoid such criminal conduct would be.
The sentence as it is warrants interference by this Court.
[21]
I must interpose to state that even though the accused was convicted
and sentenced on 17 January
2024, the irregularities in the
proceedings were identified (presumably by the Senior Magistrate) on
20 March 2024. The record
of proceedings was received by the
Registrar of this Court on 30 April 2024. Subsection 4 of
section 304
in terms of which these proceedings serve before this Court provides
as follows:
‘
(4)
If in any criminal case in which a
magistrate’s court has imposed a sentence which is not subject
to review in the ordinary course in terms of
section 302
or in which
a regional court has imposed any sentence, it is brought to the
notice of the provincial or local division having jurisdiction
or any
judge thereof that the proceedings in which the sentence was imposed
were not in accordance with justice, such court or
judge shall have
the same powers in respect of such proceedings as if the record
thereof had been laid before such court or judge
in terms of
section
303
or this section.’
[22]
For the sake of completeness, I refer to the provisions of
section
303
which are as follows:
‘
303
The clerk of the court in question shall within one week
after the determination of a case referred to in paragraph
(
a
)
of
section 302
(1) forward to the registrar of the provincial or
local division having jurisdiction the record of the proceedings in
the case
or a copy thereof certified by such clerk, together with
such remarks as the presiding judicial officer may wish to append
thereto,
and with any written statement or argument which the person
convicted may within three days after imposition of the sentence
furnish
to the clerk of the court, and such registrar shall, as soon
as possible, lay the same in chambers before a judge of that division
for his consideration.’
[23]
The Magistrate requesting the special review has not proffered any
explanation why the record
of proceedings was not laid before the
Reviewing Judge within the period set out in
section 303
of the CPA.
The late and unexplained delays in the transmission of records for
review must as far as possible be avoided as they
are invariably
prejudicial to the accused and in general inimical to the proper
administration of justice.
[24]
That being said,
ex facie
the record, it is clear that the
proceedings at which the accused was sentenced are not in accordance
with justice. It is not expedient
to invite the judicial officer who
presided over the proceedings to give reasons for the sentence that
was imposed on the accused.
[25]
Consequently, I would made the following order:
1.
The conviction of the accused is hereby
confirmed.
2.
The sentence imposed on the accused is set
aside and corrected to the extent set out below.
“
(a)
The accused is sentenced to undergo six (6) months’
imprisonment. The operation of this sentence
is wholly suspended for
three (3) years on condition that the accused is not convicted of the
offence of theft, or attempted theft
which she commits during the
period of suspension and for which she is sentenced to imprisonment
without an option of a fine.”
_____________________
L. RUSI
JUDGE OF THE HIGH COURT
I concur.
_____________________
F. DAWOOD
JUDGE OF THE HIGH COURT
Date handed down :
25 September
2024
[1]
The
amount referred to in item (i) is R5 000 per GN R62 in
Government
Gazette
36111
of 30 January 2013.
[2]
R5
000, per GN R62 in
Government
Gazette
36111
of 30 January 2013.
[3]
2006
(1) SACR 15
(C) at 21.
[4]
S
v Mjware
1990 (1) SACR 388
(N) at 389g.
[5]
R
v Cloete
1950 (4) SA 191
(E) at 192 F-G;
S
v Maqina
;
S
v Madinda
1996 (1) SACR 258
(E);
S
v Tsantshana
1996 (2) SACR 157
(E).