S v Cloete (162/05) [2005] ZANCHC 40 (12 August 2005)

S v Cloete (162/05) [2005] ZANCHC 40 (12 August 2005)

The conviction and sentence cannot stand because the accused admitted to committing the offence on a date when he was already in custody, which is inconsistent with the charge sheet. Amending the charge sheet to reflect the accused's version would result in an absurdity, as he could not have committed the offence while in detention. The only just solution is to set aside the conviction and sentence and refer the matter back to the magistrate for proper questioning in terms of section 112(1)(b) and, if necessary, to proceed in terms of section 113 of the Criminal Procedure Act.

Citation
[2005] ZANCHC 40
Parties
Applicant: The State; Respondent: Duncan Cloete
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
12 August 2005
Case Number
162/05
Procedural Posture
Criminal Review / Review of Magistrate's Conviction and Sentence
Outcome
Conviction and sentence set aside; matter referred back to magistrate for proper questioning.
Judges
C C Williams, C J Olivier
Legal Topics
Housebreaking, Plea Procedure, Amendment of Charge Sheet, Conviction and Sentence, Review Proceedings
Criminal Law Housebreaking Plea Procedure Amendment of Charge Sheet Conviction and Sentence Review Proceedings

Case Brief

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Parties

The State

Applicant

Duncan Cloete

Respondent

Procedural Posture

Criminal Review / Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the conviction and sentence can stand where the accused pleaded guilty to a charge with incorrect dates.
  2. 2 Whether the magistrate was entitled to amend the charge sheet after conviction.
  3. 3 Whether the accused was prejudiced by the discrepancy in dates.

Ratio Decidendi

The conviction and sentence cannot stand because the accused admitted to committing the offence on a date when he was already in custody, which is inconsistent with the charge sheet. Amending the charge sheet to reflect the accused's version would result in an absurdity, as he could not have committed the offence while in detention. The only just solution is to set aside the conviction and sentence and refer the matter back to the magistrate for proper questioning in terms of section 112(1)(b) and, if necessary, to proceed in terms of section 113 of the Criminal Procedure Act.

Court Disposition

Conviction and sentence set aside; matter referred back to magistrate for proper questioning.

Orders

  • The conviction and sentence are set aside.
  • The matter is referred back to the magistrate's court in terms of section 312(1) of the Criminal Procedure Act 51 of 1977 for proper compliance with section 112(1)(b) as indicated.