REPUBLIC OF SOUTH AFRJCA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTABLE : YES/NO (1)
(2)
(3)
OF INTEREST TO THE JUDGES : YES/NO
REVISED.
DAT~/~ SIGNATUR ..
In the matter between :
THE STATE
and
SILAS MOATSHE
REVIEW JUDGMENT
MULLERJ:
CASE NO: REV 109/2026
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[1] This case was submitted for special review in terms of section 304A of the Criminal
Procedure Act1 by the acting regional court magistrate sitting at Thabazimbi pursuant to the
case being transferred to the regional court for sentence in terms of section 114(1 )(b) of the
CPA.
[2] The accused is charged with theft. It is alleged that he stole a motorbike, on or about
13 December 2024 at or near Swartklip. The charge put to him in court was as follows:
"PROSECUTOR: The accused is before court facing the offence of theft. In that on or about 13
December 2024, and at or near Swartklip in the District of Northam the accused did unlawfully and
intentionally take the following items to wit motorbike to the value of R40 000,00."
The accused who was represented by an attorney pleaded guilty to the charge. His legal
representative handed in a statement in terms of section 112(2) of the CPA which stated
that the accused pleads guilty to the charge of theft in that he was arrested on 27 January
2026 for the crime of theft of a motorbike, on the date mentioned. The police found him in
possession of the motorbike. He stated that he stole the motorbike where it was next to a
fence. He knew it belonged to someone before he took physical control of the motorbike
which he took to his home without the owner's consent.
[3] The statement was confirmed by the accused after it was read into the record of the
proceedings.
[4] The magistrate enquired from the prosecutor if the plea is accepted by the
prosecution. The prosecutor replied as follows:
"Your worship the state we accept that the. all the elements of theft Your Worship are there but the, it is
not in accordance with the state case only a slight difference. It was not taken from the bush it was
stolen from a plot."
1 Act 51 of 1977. (Hereinafter called "the CPA".)
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[5] The legal representative of the accused informed the court that the accused
maintains that he found the motorbike in the forest and that he does not dispute that it
belonged to someone else.
[6] The magistrate was satisfied that the accused admitted all the elements of the
offence of theft and convicted the accused in terms of his plea.
[7] The charge (annexure A) which is attached to the J15 in the magistrates' court does
not allege who the owner of the motorcycle is or who the person in possession was on 13
December 2024 when the motorcycle was taken by the accused.
[8] It is noted that a typed charge sheet (J15) together with a typed charge (annexure A)
accompanied the papers submitted on review. The J15 contains a regional court case
number, which is intended to serve as a record of the sentence proceedings in terms of
section 114(1 )(b) in the regional court. The typed annexure A alleges that the motorbike, the
property of or in the lawful possession H Dreyer was stolen on 13 December 2024 from at
or near Swartklip.
[9] The typed annexure A differs from the charge put to the accused in the magistrates'
court where no allegation was made who the owner or person in lawful possession of the
motorbike was.
[1 OJ In a memorandum that accompanied the record submitted on review, the regional
magistrate pointed out that it is alleged that the offence was committed on 13 December
2024 and that the charge as put to the accused does not state whether the accused had
consent or not to take the motorbike. He expressed doubt if the accused admitted that he
committed the offence as alleged in the charge put to him.
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[11] Section 35(3)(a) of the Constitution guarantees that an accused has a fair trial which
includes the right to be informed of the charge with sufficient detail to answer it. Theft is
defined by Snyman CR Criminal Law 6th ed 4752 as:
"A person commits theft if he unlawfully and intentionally appropriates movable, corporeal property
which (a) belongs to and is in the possession of, another; (b) belongs to another but is in the
perpetrator's own possession; or (c) belongs to the perpetrator but is in another's possession and such
other person has a right to possess it which legally prevails against the perpetrator's own right of
possession provided that the intention to appropriate the property includes an intention permanently to
deprive the person entitled to the possession of the property of such property."
[12] The charge of theft should, therefore, contain all the essential allegations to be
proved by the prosecution to sustain a conviction. It is essential that an allegation be made
that the accused unlawfully and intentionally appropriated movable property belonging to or
in the possession of another. Section 84(1) and (2) provides that:
"(1) A charge sheet shall set forth the relevant offence in such a manner and with such particulars as to
the time and place at which the offence is alleged to have been committed and the person, if any,
against whom, and the property, if any, in respect of which the offence is alleged to have been
committed as may be reasonably sufficient to infor"!l the accused of the nature of the charge.
(2) Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be
sufficient to state that fact in the charge sheet"
[13] This provision requires that the prosecution should allege who the owner or person
in possession of the motorcycle was when it was appropriated by the accused. If the owner
or person in possession is unknown to the prosecution such allegation should have been
included in the charge.
included in the charge.
2 Fn 1. The writer refers to the definitions of Gardiner and Landsdown and Hunt-Milton as well as definitions in
cases.
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[14] No averment is made that that the motorcycle when it was appropriated by the
accused belonged to somebody or that it was in the possession of anybody. It was simply
put to the accused that he unlawfully and intentionally took a motorbike to the value of
R40 000,00. The charge accordingly does not disclose a crime of theft.
[15] Section 114 provides:
"(1 ) If a magistrate's court, after conviction following a plea of guilty but before sentence, is of the
opinion -
(a) that the offence in respect of which the accused has been convicted is of such a nature or
magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court;
(b) that the previous convictions of the accused are such that the offence in respect of which the
accused has been convicted merits punishment in excess of the jurisdiction of a magistrate's
court or
( c) that the accused is a person referred to in section 286A( 1)
the court shall stop the proceedings and commit the accused for sentence by a regional court having
jurisdiction."
(2) Where an accused is committed inder subsection (1) for sentence by a regional court, the record of
the proceedings in the magistrate's court shall upon proof thereof in the region court be received by
the regional court and form part of the record of that court, and the plea of guilty and any admission
by the accused shall stand unless the accused satisfies the court that such plea or such admission
was incorrectly recorded.
(3)(a) Unless the regional court concerned -
(i) is satisfied that a plea of guilty of the offence or an admission by the accused which is material to
his guilt was incorrectly recorded; or
(ii) is not satisfied that the accused is guilty of the offence of which he has been convicted and in
respect of which he has been committed for sentence, the court shall make a formal finding of
guilty and sentenced the accused.
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(b) If the court is satisfied that a plea of guilty or any admission by the accused which is material to his
guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence
of which he has been convicted and in respect of which he has been committed for sentence or
that he has no valid defence to the charge, the court shall enter a plea of not guilty and proceed
with the trial as a summary trial in that court; Provided that any admission by the accused of the
recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(4) The provisions of section 112(3) shall apply with reference to the proceedings under this section"
[16] Once the proceedings are stopped in the district court and the accused is committed
to the regional court for sentence in terms of section 114, that court becomes seized with
the case. I share the view of Mamosebo AJ (as she then was) in S v O/iphant3 that:
"As an illustration, if the conviction of guilty by the district magistrate is erroneous the regional court
'shall enter a plea of not guilty and proceed with the trial as a summary trial'. The implication is that,
upon considering the mitigating and aggravating factors, the regional magistrate would be at large to
impose any competent sentence, including a caution and discharge."
[17] The regional magistrate correctly entertained doubt as to the sufficiency of the
charge put to the accused in the district court. A plea of not guilty should have been entered
in terms of section 114(3)(b) by the regional magistrate. The trial must continue as a
summary trial in the regional court.
ORDER:
1. The regional court magistrate is ordered to enter a plea of not guilty and
thereafter proceed with the trial as a summary trial.
3 2014 (2) SACR 98 (NCK) par 17.
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I, concur
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
J. NGOBENI J
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE