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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Not reportable
CASE NO. CA&R 15/2025
In the matter between:
THE STATE
and
HENRICO ROOY Accused
______________________________________________________________________
REVIEW JUDGMENT
______________________________________________________________________
LAING J
[1] This is a matter from the Magistrates’ Court for the District of East London that
was referred to the High Court for special review in terms of section 304(2) of the
Criminal Procedure Act 51 of 1977 (‘CPA’).
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[2] The accused was charged with the contravention of section 17(a), read with
sections 1, 5, 6, 7, and 17 of the Domestic Violence Act 116 of 1998 . The charge sheet
indicat ed that a protection order was issued against him on 13 June 2024, at East
London, in terms whereof he was ordered not t o abuse, assault, threaten, harass, or
stalk the complainant, or to enter the house situated at 1 […] G[…] Street, Buffalo Flats.
It was alleged that the order was served on the accused and was still in force. The state
further alleged that the accused wro ngfully and unlawfully contravened the order on 15
August 2024 by threatening to assault the complainant and by entering the house in
question.
[3] At the commencement of trial proceedings, the accused tender ed a verbal plea
of guilty to the charge. His legal representative also tendered a written statement in
terms of section 112(2) . The court a quo confirmed with the accused , in general terms,
that he admitted all the elements of the offence , and subsequently convicted him a s
charged . During an oversight inspection of finalized cases, including the present matter,
the Acting Senior Magistrate discovered several deficiencies in the accused’s
statement: no mention was made of the nature of the order, the date when and place
where it was issued, whether or when the order was served on the accused and that he
understood the contents thereof, and whether it was still in force on the date of the
alleged contravention. The statement forms the subject of the special review.
[4] Under section 112(2) of the CPA, the accused is required to set out the facts that
he or she admits and on which he or she has pleaded guilty. The court may, in lieu of
questioning the accused in terms of section 112(1)(b), convict the accused on the
strength of the statement and sentence him or her accordingly. The court must also be
satisfied that the accused is guilty of the offence to which he or she has pleaded.
[5] It is trite that the facts averred in the statement must cover all the elements of the
offence with which the accused has been charged . See, in this regard, S v Gases1 and
1 2016 (4) NR 980 (HC), at paragraph [5].
S v Mkhwebane .2 There must be a proper factual basis for a plea of guilty, justifying the
conviction of the accused. The subject was addressed by the Supreme Court of Appeal
in Director of Public Prosecutions, Gauten g Division, Pretoria v Hamisi ,3 where
Dambuza JA remarked that:
‘…a court considering a statement made in terms of s 112(2) exercises its
discretion to determine whether the statement admits all the elements of the
offence in question. if it is not satisf ied that this is so, it must question the
accused as set out in s 112(1)(b) to clarify a matter raised in the written plea. If it
determines that the statement is satisfactory and admits all the elements of the
offence, it shall convict the accused on the plea of guilty. When the written plea
detailing the facts on which the plea is premised is accepted by the prosecution,
it constitutes the factual matrix on the strength of which an accused will be
convicted and the sentence imposed. The written plea is ai med at ensuring that
the court is provided with an adequate factual basis to make a determination on
whether the admissions made by an accused support the plea of guilty
tendered.’4
[6] In the present matter, there were clear deficiencies in the statement, as pointed
out by the Acting Senior Magistrate. Consequently , it was the duty of the court a quo to
have clarified : (a) why there were such deficiencies; (b) whether they would have had
any bearing on the accused’s plea of guilty; and (c) whether, ultimately, there was a
proper factual basis upon which to convict and sentence the accused. Absent such
clarification, it cannot be said that the court a quo could have been satisfied that the
accused was indeed guilty of the offence charged , notwithstanding his plea to that
effect .
[7] The following order is made:
2 2024 (1) SACR 415 (ML), at paragraphs [4] and [5].
3 2018 (2) SACR 230 (SCA).
4 At paragraph [8].
(a) the conviction and sentence of the accused are set aside; and
(b) the matter is remitted to the District Court for the magistrate to :
(i) clarify the discrepancies between the details of the charge and the
contents of the written statement ;
(ii) permit the parties to make further submissions, as may be necessary;
and
(iii) further deal with the matter as will promote the ends of justice.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
I agree
________________________
H ZILWA
ACTING JUDGE OF THE HIGH COURT
Date delivered : 11 February 2025