IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
REVIEW NO: 2026-038328
MAGISTRATE’S SERIAL NO. RC 38/2026-A393-2025
In the matter between:
NTOKOZO BRIAN KHUMALO ACCUSED
and
THE STATE
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ORDER
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The following order is made:
1. The proceedings of the court a quo are set aside.
2. The matter is remitted to the District Court, Vryheid for a guilty plea to start de
novo before another presiding officer.
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SPECIAL REVIEW
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Mathenjwa J (Zwane AJ concurring)
[1] The Regional Magistrate, Vryheid referred this matter to this court as a special
review in terms of s 304 of the Criminal Procedure Act 51 of 1977 (CPA).
[2] The accused was charged with one count of theft of two old spice deodorants
valued at R149.98 . He appeared at the Vryheid District Court, where the magistrate
advised him of his right to legal representation . The accused informed the court that
he elected to conduct his own defence. The magistrate then informed the accused
that in terms of s 60(11B) of CPA the accused was compelled to disclose his
previous convictions and the matters pending against him. The accused informed the
court that he had previous convictions for theft, although he did not know how many
previous convictions he had . The magistrate then asked the accused what he
intended to plead to the charge against him . The accused responded by saying that
he intended to plead guilty. Thereafter the magistrate made the following remarks:1
‘Why is everyone stealing this old spice deodorant? What is happening with this old spice,
what is so important? Because I see many people are stealing thi s perfume, this they steal
two old spice deodorant, valued at R140, you are not the first one. Okay. Old spice. The date
for the SAP 69 as well as the guilty plea?’
[3] The matter was postponed for the guilty plea . When the matter resume d for
the accused to plead to the charge the prosecutor informed the court that she was in
possession of the accused ’s SAP 69, which were many and like the bible . I assume
that by referring to the previous convictions as like “the bible” the prosecutor meant
that the SAP 69 was voluminous. The matter was further post poned for the accused
to engage the services of a Legal Aid attorney . On resumption the accused was
represented by an attorney from Leg al Aid. On that date the magistrate again made
remarks that he kn ew that the accused had previous convictions , he obtained
knowledge about that because he was a sangoma. The matter was then adjourned
for the accused’s legal representative to receive copies of the docket.
for the accused’s legal representative to receive copies of the docket.
[4] On resumption the accused ’s SAP 69 was read into the record. However,
there is no record of the accused having pleaded to the charge. The accused
admitted his previ ous convictions but refused to sign them. The accused’s legal
representative sought and was granted permission to consult the accused. Thereafter
the record reflect s the follo wing conversation between the accused and the
magistrate:2
1 Record, para 10, page 16.
2 Ibid, para 10, page 38.
‘Court: …Please you do not talk like that to an attorney. This is a court official, she is not -
she is not your- your- I do not even know what you are- you think she is. You do not talk like
that to attorneys. She is…
Accused: I am sorry.
Court: learned, she has studied. For years for this degree . You do not treat her like that, not
in my presence.
Accused: I am sorry, your warship.’
[5] On the return date the prosecutor asked the court to adjourn the matter for a
regional court date. Subsequently the matter was adjourned to 5 January 20 26, for
the accused to appear in the regional court for sentencing . When the accused
appeared in the regional court, the regional magistrate observed that there was no
plea tendered by the accused and no plea formed part of the record. The regional
magistrate then referred the matter to this court for special review, and the accused
was released on bail.
[6] This review raises the following issues which require consideration by this
court:
(a) the disclosure of the accused’s previous convictions before the accused has
been convicted of the offence; and
(b) summary conviction of the accused in terms of 112(1)(a) of the CPA.
[7] First, I address the issue of the magistrate’s questioning of the accused about
his previous convictions before he entered a plea and his subsequent conviction of
the accused. According to s 89 of CPA, revealing an accused ’s previous convictions
at the pleading stage is prohibited, unless such convictions are an essential element
of the offence with which an accused is charged. Moreover, s 197 restricts inquiries
directed at an accused who te stifies in criminal proceedings, preventing questions
that may indicate whether he has been convicted or charged with any offence other
than the one with which he is currently being charged. Additionally, under s 271,
previous convictions can only be introduced in court after a n accused has been
previous convictions can only be introduced in court after a n accused has been
convicted but before sentencing takes place. It is acknowledged that the accused’s
previous convictions are not essential element of the charge of theft that he faced;
therefore, it was against the provisions of the CPA to compel him to disclose these
convictions prior to his conviction.
[8] The magistrate misdirected herself by relying on 60(11B) of the CPA as
authority for disclosure of the accused’s previous convictions at the plea stage. It is
clear from the provisions of s 60(11B) (a)(i) which provides that “in bail proceedings,
the accused, or his or her legal adviser, is compelled to inform the court whether -the
accused has previously been convicted of any offence ”; that the provision is only
applicable to bail applications . The prosecutor may disclose the accused ’s previous
conviction when the accused applies for bail during trial,3 however the magistrate in
this matter was not dealing with a bail application. The record shows that immediately
after the magistrate had questioned the accused about his previous convictions, she
stated the following: 4
‘Court: Okay. Mr Khumalo, since you have informed the court that you have many previous
convictions that you do not remember how many, the Court will require to have then SAP
69s in order to proceed with the guilty plea . The matter is postponed to 23 August 2025 for
guilty plea as well as SAP 69s, you are in custody. So, were you intending to apply for bail?
Accused: No, your worship, since I do not have money.’
[9] The record also indicates that at the time the accused was asked about and
disclosed his previous conviction s in court he was not applying for bail. The
accused’s first appearance in court is recorded in a handwritten manuscript where it
is recorded that, rights to legal representation were explained to the accused and the
accused was appraised of s 60(11B) of the CPA . The accused stated that he had
many previous convictions of theft and that he abandons his right to bail.5 Thus, the
issue before the magistrate was not bail.
[10] It is trite that evidence of previous convictions in the trial was legally irrelevant
because of the highly prejudicial effect it had on the mind of the trier of fact ,6 In the
because of the highly prejudicial effect it had on the mind of the trier of fact ,6 In the
instant case, the magistrate formed the view that the matter should be referred to the
regional court, since by then she was aware that the accused had many previous
convictions.
[11] I now deal with the accused’s plea. Section 112 of CPA provides that:
3 S v Hlati 2000 (2) SACR 325 (N) (Hlati) at 329G.
4 Record, para 20 page 16.
5 Ibid page 11.
6 R v Dominic 1913 TPD 582
‘(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; 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 othe r 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, 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.’
[12] It is trite that s 112(1) (a) is applied when the court is of the opinion that the
accused has committed a minor offen ce, for which the penalty does not mandate
imprisonment or a fine exceeding R5 000, being the amount currently set by the
Minister. This provision allows for the summary conviction and sentencing of
Minister. This provision allows for the summary conviction and sentencing of
individuals charged with petty crimes without considering any previous convictions. In
this particular case, the accused was charged with theft; both the magistrate and
prosecutor knew that he had numerous previous convictions, which the prosecutor
described as extensive, likening them to a “bible”, even before the accused e ntered
his plea. Given that the court intended to take into account th e accused’s previous
convictions, the charge against the accused could no longer be regarded as minor.
Consequently, it became necessary for the court to apply s 112(1) (b), requiring the
magistrate to question the accused about his guilty plea in order to ensure that all
elements establishing the offen ce had been satisfied.7 It was therefore i rregular for
7 S v Nyanga 2004 (1) SACR 198 (C) para 7.
the magistrate to permit the accused to enter a plea under s 112(1) (a) without first
confirming his guilty plea through questioning, especially considering that he was
facing severe punishment.
[13] This th en brings me to the remarks made by the magistrate to the accused
during the hearing. The responsibility of officers of the court to maintain integrity and
honesty within the courtroom extends beyond just legal representatives; presiding
officers, as guardians of justice, hav e a primary obligation to uphold the decorum of
the court cons tantly. This involves overseeing and ensuring that all litigants and
participants in the court receive fair and impartial treatment. By interacting
respectfully with all individuals involved in court proceedings and refraining from
using inappropriate or d isparaging language, presiding officers can significantly
contribute to maintaining the dignity of the courtroom. Therefore, the remarks made
by the magistrate to the accused during the hearing are unfortunate.
Order
[14] In the premises the following order is made:
1. The proceedings of the court a quo are set aside.
2. The matter is remitted to the District Court, Vryheid for a guilty plea to
start de novo before another presiding officer.
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Mathenjwa J
I agree:
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Zwane AJ