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[2015] ZAWCHC 28
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S v Willemse (B14/2015) [2015] ZAWCHC 28 (18 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
High Court Ref No: 15284
Magistrate’s
serial No: 2/2015
CASE NO: B14/2015
DATE: 18 MARCH 2015
In the matter between:
THE STATE
And
WHAYLIN WILLEMSE
From the Court of the Magistrate for
the District of MALMESBURY held at ATLANTIS.
REVIEW JUDGMENT
BINNS-WARD J:
This matter was sent to this court on
special review in terms of
s 304(4)
of the
Criminal Procedure Act 51
of 1977
by the magistrate at Atlantis.
The accused, who was legally
represented, pleaded guilty before a probationer magistrate to a
charge of malicious injury to property.
The trial magistrate elected
to accept the plea in terms of
s 112(1)(a)
of the
Criminal Procedure
Act. Malicious
injury to property (in the current case the charge
sheet had disclosed that the value of the property concerned was R1
500) is
a serious offence, and thus one in respect a sentence of
direct or suspended imprisonment, or correctional supervision coupled
with a suspended sentence of imprisonment should have been regarded
as eminently foreseeable possibilities. The magistrate’s
election in the circumstances to convict the accused in terms of
s
112(1)(a)
was therefore injudicious, to say the least.
The trial magistrate imposed a sentence
of six months’ imprisonment wholly suspended for a period of
three years on condition
that the accused is not convicted of
malicious injury to property committed during the period of
suspension.
Section 112(1)(a)
of the
Criminal Procedure Act
provides
:
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.
A wholly suspended period of
imprisonment is, despite the order of suspension – which is
conditional – a punishment
of imprisonment. The sentence
imposed was thus plainly not a competent one in terms of
s
112(1)(a)(i)
of the
Criminal Procedure Act.
In the letter under cover of which the
record was sent on review, the district magistrate recorded that the
matter had been discussed
with the presiding officer at the trial and
with the accused’s legal representative and advised that they
had indicated that
they did not wish to make any written comment. He
requested that the sentence imposed by the trial magistrate be set
aside and
the matter remitted for the consideration of sentence
afresh.
In my judgment the failure of justice
in the proceedings was more fundamental than the magistrate’s
request appears to recognise.
As pointed out by Le Grange J
(Veldhuizen J concurring) in S v Williams 2009 (1) SACR 192 (C), at
para 12, ‘The jurisdictional
fact required by
s 112(1)(a)
is
that the magistrate must be of the opinion that the offence an
accused pleads guilty to does not justify a sentence in excess
of R1
500 [the amount has since been increased to R5 000] before he is
entitled to convict the accused on his plea of guilty.
This approach
must also be read in context with the peremptory provision of
s
112(1)(b)
where a magistrate is compelled to - in the event that he
is of the view that the offence justifies a fine in excess of R1 500
- question the accused with regard to the alleged facts of the matter
in order to ascertain whether the accused admits the allegations
in
the charge on which he pleaded guilty. In this regard see S v
Addabba; S v Ngeme; S v Van Wyk
1992 (2) SACR 325
(T) at 329f –
g’
. (A punishment of imprisonment without
the option of a fine must be understood to be ‘a sentence in
excess of a fine’
for the purposes of the quoted passage.)
Accepting a submission from the Director of Public Prosecutions to
that effect, the court
in Williams held that, in the context of a
failure by the magistrate to have applied his mind to the
jurisdictional fact, not only
the sentence, but also the conviction
had to be set aside.
It is evident upon a perusal of the
record in the current matter, from which it is apparent, amongst
other matters, that the magistrate
thought it appropriate, when
informed that there was a suggestion that the accused had a previous
conviction for robbery, to remand
the case for the previous
conviction to be proved - which, in context, could only have been to
consider the appropriateness of
a custodial sentence - that the
presiding officer had not applied his mind to the relevant
jurisdictional fact when he elected
to convict the accused without
first questioning him in the manner contemplated by
s 112(1)(b)
for
his conduct was irreconcilable with any appreciation by him of the
limitations imposed by the course he had elected to adopt.
In circumstances directly comparable to
those in this case the court in Williams held as follows at para
14-17 of the judgment:
[14] ….The magistrate erred in
failing to apply his mind to the jurisdictional fact required by the
subsection before convicting
the accused on her bare plea of guilty,
and the conviction can, in terms of the provisions of the subsection,
not be in accordance
with justice.
[15]
Section 112(1)(a)
was, and still
is, intended for minor offences and should be used sparingly and only
where it is certain that no injustice will
result from its
application. See S v Addabba; S v Ngeme; S v Van Wyk (supra) at 332e.
[16] The conviction and sentence in
this matter are not in accordance with justice and should be set
aside.
[17] In the result I make the following
order.
1. The conviction and sentence are set
aside.
2. The matter is remitted to the
magistrate to act in terms of the provisions of
s 112(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
The cases being essentially
indistinguishable, it seems to me that a similar result should follow
in the current matter. The following
order is made:
1. The conviction and sentence are set
aside.
2. The matter is remitted to the
magistrate’s court for the trial to be commenced de novo before
a different magistrate.
A.G. BINNS-WARD
Judge of the High Court
SAVAGE J:
I agree.
K.M. SAVAGE
Judge of the High Court