IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
High Court Ref: 142/26
Magistrate Serial No. Review No 40/2026
Magistrate's Case No: 13/608/2025
In the matter between:
THE STATE
V
JIMMYPOOL ACCUSED
Neutral citation: S v Pool (Case No. 142/26) [2026] ZA WCHC . . . (11
September 2026)
Coram: LEKHULENI et NZIWENI JJ
ORDER
1. The conviction and sentence of the accused for possession of suspected
stolen property are hereby set aside.
1
2. In terms of s 312 of the CPA, the matter is remitted to the same magistrate
to allow the accused to plead afresh, so that the accused can be sufficiently
questioned.
3. If the accused still pleads guilty and is convicted, the court should, in
imposing sentence, consider the time already spent by the accused in
custody serving sentence.
4. The ancillary order in terms of s 103 of the Firearms Control Act 60 of
2000 is hereby set aside.
5. The State should make sure that the matter is dealt with expeditiously.
JUDGMENT
Lekhuleni J et Nziweni J:
Introduction
[ 1] This matter came before this Court as an automatic review in terms of s
302 of the Criminal Procedure Act 51 of 1977 ("the CPA"). The accused was
convicted by the Magistrate, Cape Town, on 21 April 2026 for a contravention of
s 36 of the General Law Amendment Act 62 of 1955 (possession of suspected
stolen property). The State alleged that on 5 June 2025, and at or near Chappini
and Castle Street in the District of Cape Town, the accused was found in the
unlawful possession of goods other than stock or produce as defined in s 1 of the
Stock Theft Act 57 of 1959, being a brown leather bag; 2 pairs of trousers, shirts
and a pair of socks to the value of R8700.
[2] The accused's rights to legal representation were fully explained to him,
and legal aid subsequently came on record for the accused. However, on 21 April
2
2026, the date of trial, the court was informed that the defence' s mandate had
been terminated. The record does not make clear why the mandate was
terminated. However, after the accused's rights to legal representation were
explained to him, he elected to conduct his own defence. The matter then
proceeded, the charges were put to him, and he pleaded guilty. The court
thereupon invoked the provisions of s 112( 1 )(b) of the CPA. After questioning
the accused, the court accordingly convicted the accused on a charge of
possession of suspected stolen property. The accused was subsequently sentenced
to twenty-four months' imprisonment. Additionally, in terms of s 103(1) of
the Firearms Control Act 60 of 2000, the court determined that the accused is
unfit to possess a firearm.
The plea Proceedings before the trial court
[3] In light of our concerns about the conviction of the accused on the
relevant charge, based on his admissions, we raised a query and asked the
magistrate whether the accused admitted the elements of the offence charged. Our
concern was premised on the admissions that the accused made during
questioning in terms of s 112(1 )(b) of the CPA. We were also concerned with the
sentence imposed by the trial court. For the sake of completeness, we reproduce
verbatim the relevant part of the alleged admissions the accused made during the
court's questioning in terms of s l 12(1)(b) of the CPA.
"Q: Do you pleading (sic) guilty freely, voluntarily and without undue influence?
A: Own free will.
Court: In your own words, tell me what happened:
A: I was on my way the shop (sic), I saw the shop was closed, I made a U tum as he return the
Chapini Street, on the way I came across an individual. I wanted to know why is he with these,
thing he said. He is selling these item and bought these bread and warm sausages, I paid him
+-R80 something he gave me the thing, I went with the luggage, they asked me where I got
3
this stuff, more securities came, they took me to the building that was broken into, they said, if
there is no complainant, I will get these, there was a person who came and said it is his property.
I know it was wrong. I thought this might have been stolen, went ahead and pay for these, paid
85 or 86."
[ 4] After the questioning, the state accepted the accused's plea, and the trial
court convicted the accused as charged and accordingly sentenced him to twenty
four months' imprisonment.
The query to the magistrate in terms of s 304(2)(a) of the CPA and her
response:
[ 5] After perusing the record, we addressed a query to the magistrate to address
the following:
1. In his response to the court's questions, the accused admitted possession
of bread and warm sausage. These items don't form part of the charge sheet.
2. Did the accused admit to possession of the items stated in the charge sheet?
( clothing and bag)
3. Is the sentence of two years' imprisonment not harsh in the circumstances?
[6] The trial magistrate responded promptly to the questions we raised. Again,
for the sake of completeness, we will set out verbatim the magistrate's response
in relation to the conviction of the accused.
"2. In response to the honourable reviewing judge's query point 1:
The accused said he was on his way to the shop when he came across an individual who had a
bag with items, he wanted to know from this person why he is there with these things. He was
on his way to buy bread and warm sausage when he came across this unknown person and the
shop was closed. (His story was not chronological) had to be written as such.
4
2.1 He said the unknown person was selling these things, he said clothing at some stage and
while he was in possession of the luggage, not individually identified, but referred to as a bag
with clothes.
3. He said he paid R85 or R86 for the bag (thing). He was stopped by the Law Enforcement
Security who asked me where I took the stuff, more securities came they took me to a building
that was broken into and said if there is no complainant, I will get these items back. There was
a person who came and said it is his property.
4. I confirm that it was an irregularity not to ask him each and every item as laid out in the
charge sheet. As the presiding officer in the above matter, I wish to apologize to this honorable
reviewing judge for the oversight.
5. In the event that the honourable reviewing judge finds that the above-mentioned irregularity
can be condoned, then I humbly request the honourable reviewing judge to do so. I will be
bound by any decision made by the honourable reviewing judge ... "
[7] The remainder of the magistrate's response deals with the appropriateness
of the sentence that she imposed. Given our view on conviction, we deem it
unnecessary to reproduce the portion concerning to the sentence.
Discussion
[8] A plea of guilty is no mere formality; it is a profound step that carries
significant constitutional and legal consequences. Section 112 of the CPA
regulates the procedure in terms of which a guilty plea is made and considered by
courts. It is trite that s 112( 1) regulates the conviction and sentence of an accused
on a verbal plea of guilty .1 From the discussion above, it is evident that the court
did not, upon questioning the accused, establish whether the accused indeed
admitted all the elements of the charge.
1 Director Of Public Prosecutions, Gauteng Division, Pretoria v Hamisi 2018 (2) SACR 230 (SCA) Para 7.
5
[9] Underlying any criminal charge is the prosecution's onus to prove all
elements of an offence beyond a reasonable doubt; a burden that remains on the
State throughout. When an accused enters a guilty plea, this onus dictates that a
court cannot convict blindly. Instead, the court must question the accused to
satisfy itself that every essential element has been fully admitted. The court's
mandatory questioning acts as a safeguard to ensure that the State's burden is
structurally satisfied by extracting clear, unambiguous admissions from the
accused for every single element of the offence. Should the accused's answers
reveal a potential defence, the State's burden is not discharged, and the matter
must proceed to trial where the State must lead evidence to prove its case.
[ 1 O] Close and regular adherence to these demands bears heavily on the
legitimacy of our plea system. This is precisely why a progressive and verbatim
mechanical recording of plea proceedings is critical. As this Court strictly
observed in S v Kotze; S v Ntulo,2 plea proceedings are a critical stage in the
criminal justice process, necessitating a complete mechanical record rather than
an unreliable checklist. It is regrettable, however, that the High Court Divisions
are repeatedly inundated with reviews stemming from a pervasive failure by
lower courts to meet the basic standards of inquiry required bys l 12(l)(b).
[11] A review Judge must be capable of inspecting a spontaneous, word-for
ward account of the inquiry to ensure that the magistrate did not simply treat the
section as an optional checklist. The questioning of the accused was perfunctory
and conducted in a cursory manner. It is not clear from the record where the
accused was found, nor does the questioning establish with any specificity
where the offence was allegedly committed. It is equally unclear what was found
in the accused's possession.
2 2023 (1) SACR426 (WCC).
6
[12] The accused referred to having bought bread and sausage from a person
he met on the road, yet these items do not appear on the charge-sheet. He also
mentioned "luggage", but the record does not disclose what this luggage
comprised or whether it related to the items he was allegedly found in possession
of, as stated in the charge-sheet. The accused stated that he was asked where he
had obtained the said items, but it is not known who posed these questions
before "more securities" arrived. The accused was not asked what he intended
to do with the items, nor was he asked what explanation he gave to the security
personnel when they confronted him.
[ 13] The record also does not make clear where the accused encountered the
individuals who confronted him about the alleged luggage. The accused stated
that he was taken to a building that had been broken into, yet the record does
not disclose where this building was situated. The value of the goods allegedly
found in his possession was likewise not canvassed with him. The record does
not reveal how or where the accused was arrested, nor whether the arrest
occurred immediately after he was allegedly found in possession of the goods
or only at some later stage.
[14] As established in the locus classicus S v Mkhize, 3 and firmly reinforced
recently in this Division in S v Daniels; S v Templern,4 the magistrate cannot
rely on inferential reasoning or assume an unrepresented accused appreciates
the technical legal definitions of an offence. The court must elicit a direct factual
exposition, a benchmark requirement that is uncomplicated to satisfy, yet
essential to maintain. The presiding officer is not required to conduct a mini-
3 1978 (I) SA 264 (N) at 267-268.
4 (227/26; 228/26) [2026] ZAWCHC 389 at paras 25-26.
7
trial or act as a finder of absolute truth; he or she must simply assure themselves
that the conduct admitted actually fits the relevant offence.
[15] Evidently, the questioning of the accused lacked substance, and the
court's approach leaves much to be desired, particularly in light of the two-year
sentence subsequently imposed. By failing to elicit these basic facts, the
magistrate missed a standard that is explicitly designed to be easy to achieve,
yet fatal to ignore. As such, an insufficient factual basis existed to satisfy the
court of the accused's guilt under s l 12(l)(b) of the CPA. We do appreciate that
magistrates' courts operate under an extremely heavy workload; however, that
cannot excuse the deficiencies evident in this matter. A lackadaisical approach
in cases involving unsophisticated accused persons who plead guilty, especially
in the lower courts, which can be described as the coal face of justice, cannot be
countenanced.
[ 16] It must be emphasised that the questions and answers in terms of s
l 12(1)(b) of the CPA must at least cover all the essential elements of the offence
which the State in the absence of a plea of guilty would have been required to
prove. 5 It is perhaps apposite to remind ourselves that prior to the enactment of
the present CPA, there was no procedure akin to that provided for ins 112(1) or
(2) of the CPA. In terms of s 286 of the now repealed Criminal Procedure Act 56
of 1955, even where a plea of guilty had been tendered by an accused, lower
courts could not convict in serious cases (ie offences carrying a sentence of
imprisonment) unless there was evidence, other than that of the accused, that the
offence in question had actually been committed.6
5 S v Mbebe 2004 (2) SACR 537 (Ck).
6 Director Of Public Prosecutions, Gauteng Division, Pretoria v Hamisi 2018 (2) SACR 230 (SCA) para 11.
8
[17] In such a case, the prosecution was obliged to tender evidence aliunde of
the commission of the offence; that is, the prosecution did not have to prove that
the accused had committed the offence in question: the prosecution merely had
to tender evidence that the offence had been committed. That entailed calling a
witness to testify as to the events which had occurred and on which the state relied
for its contention that an offence had been committed.
[18] In a case such as the present, the prosecutor would have called one of the
security officers who confronted the accused to testify how the offence was
committed. The enactment of the CPA brought with it the procedure provided for
ins 112, which dispensed with the need to call witnesses. As the court noted in
State v Moya,7 the new procedure did not dispense with the need for the court to
be fully informed of how the alleged offence had been committed. The
information which had hitherto to be placed before the court still had to be placed
before it, only via a different method or procedure.
[19] In S v Shiburi, 8 Makgoka AJA, as he then was, writing for the majority,
noted that the procedure set out in s 112 is designed to avoid the necessity for
calling evidence in cases where it is clear that the accused both understands all
the elements of the charge against him or her and admits them all. The court noted
that the section was designed to protect an accused from the consequences of an
unjustified plea of guilty. In the constitutional era, the court noted, the procedure
ins 112 must be considered within the context of a right to a fair trial enshrined
in s 35(3) of the Constitution. Significantly, the court observed that the
constitutional right to a fair trial should guide the court in determining the ambit
of the questions that should be put.
7 2004 (2) SACR 257 (W) at p260.
8 See S v Shiburi 2018 (2) SACR 485 (SCA) para 18.
9
[20] As previously stated, the accused's admissions during questioning lacked
detail. The magistrate's explanation regarding the answers given by the accused
during the plea proceedings is not borne out by the record. The court can only
consider what is contained in the record and not what was reconstructed by the
magistrate alone in response to this Court's query. Section 4(1) of the Magistrates'
Courts Act 32 of 1944 provides that every court shall be a court of record, and
Rule 66 of the Magistrate's Courts Rules provides that criminal proceedings, or
any portion thereof, may be recorded in writing or by electronic means. Simply
put, all proceedings in the Magistrate's Court must be recorded
contemporaneously as the proceedings unfold. The review or the appeal court is
confined to the record and cannot look beyond what is on the record.
[21] This Court is ultimately enjoined to consider whether the proceedings
before the trial court appear to be in accordance with justice. Pursuant to the
issues raised above, we are not satisfied that the conviction and the subsequent
sentence of the accused were in accordance with justice.
Further irregularities
(a) Seven days postponement in terms of s 50(6)(d) of the CPA
[22] We must further indicate that, upon reading the record, we noted a number
of irregularities that affect the integrity of the trial court's proceedings. The
accused appeared for the first time on 09 June 2025, and the matter was postponed
to 1 7 June 2025 for bail information. Clearly the matter was postponed in terms
of s 50( 6)( d), which amongst others provides:
'The lower court before which a person is brought in terms of this subsection, may postpone
any bail proceedings or bail application to any date or court, for a period not exceeding seven
days at a time, on the terms which the court may deem proper and which are not inconsistent
with any provision of this Act, if-
(i) the court is of the opinion that it has insufficient information or evidence at its
(i) the court is of the opinion that it has insufficient information or evidence at its
disposal to reach a decision on the bail application;
(ii) the prosecutor informs the court that the matter has been or is going to be referred
to an attorney-general for the issuing of a written confirmation referred to in section
60(1 IA); (Emphasis added).
[23] Under this provision, a court may postpone bail proceedings or a bail
application to any date or court, for a period not exceeding seven days at a time,
on terms the court deems proper. In our view, when such a remand is made, there
must be cogent reasons provided to the court for it to postpone such a case for a
period not exceeding seven days. From the number of records we have read, it
seems to us that it has become a practice for the State to request a postponement
of a case for seven days each time an accused person appears for the first time in
the lower court.
[24] In our view, this constitutes an abuse of the process. The seven-day
postponement contemplated by s 50( 6)( d) of the CPA constitutes a strict
statutory ceiling rather than a default or automatic period of remand. It does not
follow that upon each appearance, an accused's matter must mechanically be
postponed for the full seven-day duration; seven days represents merely the
absolute cutoff limit. Consequently, the matter may be postponed for a shorter
duration, for instance, three or four days, provided it does not exceed the
statutory maximum requirement. However, when such a request for
postponement is made, the State must advance good reasons for it, and the
accused must be afforded an opportunity to object or to express his or her views
on the requested remand.
[25] What is concerning in this matter is that the matter was postponed several
times for further investigation. Even after nine (9) postponements, the
investigation was still incomplete. The accused was kept in custody for 10 months
before the charges could be put to him. There had been several postponements
from June 2025, when the accused was arrested, until 21 April 2026, when the
11
matter was heard and finalised. Strikingly, on 24 November 2025 the matter was
postponed to 3 February 2026, a period of almost three months, because the
docket had not been brought to court. The defence requested that the matter be
marked final for the docket, and it was indeed so marked.
[26] When the matter resumed on 3 February 2026, the docket still had not
been brought to court. No explanation was given to the court for why the docket
was not brought to court. The accused complained that he had been in custody
for a long period. Notwithstanding this, the court again postponed the matter for
the docket and for legal aid to 17 February 2026. In our view, a postponement
of the matter under these circumstances violated the accused's constitutional
right to a fair trial. Further, at his second appearance on 17 June 2025 and again
at his third appearance on 1 July 2025, the accused indicated that he wished to
plead guilty. Despite this, the matter was postponed several times.
[27] This, in our view, infringed the accused's right to a speedy trial as
envisaged in s 35(3)(d) of the Constitution, namely the right to have his trial
begin and conclude without unreasonable delay. It appears to us, prima facie,
that this right was blatantly ignored, not only by the prosecutors involved in the
matter, but also by the magistrates who presided from time to time and granted
postponements without enquiring whether the requests were reasonable or
justified. 9
[28] It becomes necessary, in our view, to impress on presiding officers in
criminal matters to jealously guard the accused's rights, particularly
unrepresented litigants. Whilst the State may make an application for a remand,
the court should not and must not remain a passive bystander and rubber-stamp
9 See S v Maredi 2000 (1) SACR 611 (T) at 613F-G.
12
the State's request. An application for a postponement must not be there for the
taking, especially where the accused is in custody. There must be good grounds
warranting a remand, and if there are none, it must be refused.
[29] To this end, the SCA in S v May, 10 reminded us that judicial officers are
not umpires. Their role is to ensure that the parties' cases are presented fully and
fairly, and that the truth is established. They are not required to be passive
observers of a trial; they must ensure fairness and justice, and if that requires
intervention, it is fully justifiable. Intervention becomes an irregularity only when
prejudice is caused to an accused.
(b) The charge
[30] Finally, we are appalled and disturbed by the manner in which the
prosecutor handled this matter. First, the charge sheet is not a model of clarity.
The preamble to the charge sheet refers to a contravention of s 36 of the General
Law Amendment Act 62 of 1955, read together with s 51(2) and Part V of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997. Part V of the said
Act refers to 'any offence referred to ins 36 or 37 of the General Law Amendment
Act 62 of 1955, involving ferrous or non-ferrous metal which formed part of
essential infrastructure, as defined in s I of the Criminal Matters Amendment Act
2015. Part V also envisages theft, involving ferrous or non-ferrous metal which
formed part of essential infrastructure, as defined in s I of the Criminal Matters
Amendment Act, 2015, which is not covered in Part II of this Schedule.
[31] In the charge sheet, the accused is alleged to have been found in
possession of predominantly clothing and a leather bag, and not ferrous or
10 2005 (2) SACR 331 (SCA) para 28.
13
non-ferrous metal. The invocation of the Criminal Law Amendment Act
suggested that, upon conviction, a prescribed minimum sentence of seven years
would apply to a third or subsequent offender in the absence of substantial and
compelling circumstances. Clearly, this Act did not apply in the District Court
in respect of the offence in question.
[32] It is unclear from the charge sheet whether the value ofR8700.00 refers to
the total value of the alleged goods or specifically to navy blue trousers. This was
not clarified during the hearing. It seems to us, though, that this amount refers to
the total value of the alleged goods. It can safely be said that the prosecutors who
drafted the charge sheet did not apply their minds properly.
[33] What is particularly troubling is that the State accepted the accused's plea
after the magistrate had questioned him. It is unclear what, precisely, the State
accepted, as the accused never admitted any of the allegations contained in the
charge sheet, nor did the charge sheet refer to the bread and sausages the accused
claimed to have possessed. The acceptance of the plea was therefore not
grounded in any factual basis or reasonable grounds.
[34] As Broughton noted, prosecutors must seek justice. Do justice, protect the
innocent and charge the guilty. I I In exercising this public power, prosecutors
must adhere to the principle of legality, an incident of the rule of law envisaged
ins l(c) of the Constitution. The doctrine of legality, which requires that public
power should have a source of law, is applicable whenever public power is
exercised, and the public power must comply with the Constitution, which is our
country's supreme law. This principle applies equally to prosecutors in the
exercise of their public function.
11 Broughton DWM 'The South African Prosecutor in the face of Adverse Pre-Trial Publicity' (Vol 23) [2020]
PER3.
14
[35] In Botha v Minister of Safety and Security and Others; January v Minister
of Safety and Security and others, 12 Tshiqi JA, writing for a unanimous court
observed that prosecutors have to protect the public interest, act with objectivity,
take proper account of the position of the suspect and the victim, and pay attention
to all relevant circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect. The Court noted that the same holds true in our
country, especially in view of the principle of legality recognised ins l(c) of the
Constitution which describes the supremacy of the Constitution and the rule of
law as one of the foundational values of the Republic of South Africa.
Conclusion
[36] Consequently, from a conspectus of the evidence, the conduct of the
prosecutor and magistrate appears to have undermined the accused's
constitutional rights. This is to be deprecated and deplored. As previously noted,
it cannot be said that the proceedings before the court a quo were in accordance
with justice. In our view, the irregularities observed are so gross that they vitiate
the legality of the proceedings of the trial court. As a result, we cannot confirm
that the conviction and sentence of the accused were in accordance with justice.
[3 7] The irregularities observed in this case, in particular, relate to a failure to
comply withs 112(l)(b) of the CPA, and therefore, the matter should ordinarily
be remitted to the court a quo in terms of s 312 of the CPA. However, we are
mindful of the guidance of the SCA in S v Mshengu, 13 where the court observed
thats 312 should not be invoked if compliance with the section would be unfair.
12 2012 (1) SACR 305 (ECP) para 33.
13 2009 (2) SACR 316 (SCA) ('M~hengu').
15
To this end, we find the following excerpt from that judgment relevant. The court
stated:
'[17] The purpose of s 312 is to prevent an injustice which may occur if an accused
person were to escape punishment for his or her crime only because his or her
conviction was set aside on the ground that there was a failure to comply with s 112 of
the Act. But an injustice cannot occur where the accused has served the entire sentence
by the time the conviction is set aside on appeal. Nor can it occur where a fresh
conviction cannot be achieved following a remittal to the trial court .... There can be no
justification for ordering that an accused person, who has already served the entire
punishment, be subjected to a second trial. Such an order would be inconsistent with
the right to a fair trial. In my view it could never have been the intention of the
legislature that a court is obliged to comply with the section irrespective of the injustice
or unfairness that it may cause.' ( emphasis added)
[3 8] In this case, the accused was sentenced to two years' imprisonment on 21
April 2026. In our view, it would not be unjust to remit the matter back to the trial
court if the State still intends to pursue its case against the accused. As the SCA
noted in Mshengu, s 312 is aimed at preventing an injustice which may occur if
an accused person were to escape punishment for his or her crime only because
his or her conviction was set aside on the ground that there was a failure to comply
withs 112 of the CPA.
Order
[39] In the result, the following order is granted:
(a) The conviction and sentence imposed on the accused are set aside.
(b) In terms of s 312 of the CPA, the matter is remitted to the same
magistrate to allow the accused to plead afresh, so that the accused can be
sufficiently questioned.
16
( c) Should the accused still plead guilty and be convicted, in sentencing
the court should consider the time already spent by the accused in custody
serving sentence.
( d) The ancillary order in terms of s 103 of the Firearms Control Act 60 of
2000 is hereby set aside.
( d) The State should make sure that the matter is dealt with expeditiously.
c' LEKHULENIJD
JUDGE OF THE HIGH COURT
) ·•
NZIWENICN
JUDGE OF THE HIGH COURT
17