S v Duze (618/2010) [2011] ZAFSHC 4 (6 January 2011)
- Citation
- [2011] ZAFSHC 4
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- G.F. Wright, R
- Case number
- 618/2010
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- G.F. Wright, R
- Case number
- 618/2010
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The High Court found that the accused did not plead guilty to attempted murder, as he admitted only to intending to injure the complainant and not to murder him. Therefore, the conviction for attempted murder was not supported by the accused's plea or the record. In terms of section 304(4) of the Criminal Procedure Act, both the conviction and sentence must be set aside. The matter is referred back to the Regional Court for a new trial before a different magistrate.
Court disposition
Conviction and sentence set aside; matter referred for de novo trial before another magistrate.
Orders
- The conviction and sentence are set aside in terms of section 304(4) of Act 51 of 1977.
- The matter is referred back to the Regional Court for a de novo trial before another presiding officer.
02
Material facts
Parties
The State
ApplicantMalibongwe Duze
Respondent03
Procedural history
Posture
Review Application / High Court Review of Regional Court Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the accused's plea supported a conviction for attempted murder.
- 02
Whether the conviction and sentence were valid in light of the accused's admissions.
- 03
Whether the matter should be referred for a de novo trial before another magistrate.
Party arguments
- Applicant
- The Regional Magistrate submitted that the sentence imposed was vague and confusing, and that the conviction for attempted murder was not supported by the accused's plea. The accused admitted only to intending to injure the complainant, not to murder. The oversight was attributed to the presiding officer's lack of experience. It was suggested that the conviction and sentence be set aside and the matter be referred back for a new trial before another magistrate.
- Respondent
- The accused did not make any formal submissions in the review proceedings. The record indicates that he pleaded guilty only to intending to injure the complainant, not to murder, and thus the conviction for attempted murder was not supported by his admissions.
05
Court’s reasoning
Legal principles
- 01
Section 304(4) of the Criminal Procedure Act 51 of 1977
A conviction must be supported by the accused's plea and admissions; if the accused does not admit all elements of the offence, the conviction cannot stand.
- 02
Section 304(4) of the Criminal Procedure Act 51 of 1977
Where a conviction and sentence are not supported by the record, the High Court may set them aside and refer the matter for a de novo trial.
06
Ratio, limits and disposition
Ratio decidendi
The High Court found that the accused did not plead guilty to attempted murder, as he admitted only to intending to injure the complainant and not to murder him. Therefore, the conviction for attempted murder was not supported by the accused's plea or the record. In terms of section 304(4) of the Criminal Procedure Act, both the conviction and sentence must be set aside. The matter is referred back to the Regional Court for a new trial before a different magistrate.
Obiter and limits
- The oversight in convicting the accused of attempted murder appears to have resulted from the presiding officer's lack of experience.
- It is essential that the accused's admissions during a plea of guilty cover all elements of the offence charged.
Court disposition
Conviction and sentence set aside; matter referred for de novo trial before another magistrate.
- The conviction and sentence are set aside in terms of section 304(4) of Act 51 of 1977.
- The matter is referred back to the Regional Court for a de novo trial before another presiding officer.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
VRYSTAATSE HOË HOF, BLOEMFONTEIN
REPUBLIEK VAN SUID-AFRIKA
Hersiening Nr. : 618/2010
In die hersiening tussen:-
DIE STAAT
versus
MALIBONGWE DUZE
_____________
UITSPRAAK DEUR: WRIGHT, R
GELEWER OP: 6 JANUARIE 2011
[1] ‘n Skrywe is ontvang vanaf die streekshoflanddros te Welkom gedateer 13 Desember 2010 wat soos volg lui:
“1. Attached hereto please find the transcribed record of the abovementioned Regional Court Case.
2. Attached also please find comments by the preciding acting Regional Magistrate, Mr. Rampersad.
3. It is my respectful submission that the sentence imposed is vague and confusing. Apart thereof the sentence had apparently been altered by the preciding officer as set out in his comments.
4. Although the accused had been found guilty of attempted murder as charged, after he pleaded guilty, there is no indication that he in fact intended to murder the complainant, but only admitted that he had the intention to injure the complainant.
5. It is submitted that the oversight could be attributed to a lack of experience on the part of the preciding officer.
6. After consultation with the Regional Court President, Mr Lalbahadur, it was suggested that the matter be brought to the attention of a Judge of the Free State High Court, for possible intervention in terms of the provisions of section 304(4) of the Criminal Procedure Act, act 51 of 1977.
7. It is therefor respectfully suggested that the conviction and sentence be set aside and that the matter be referred back for a de novo trial before another preciding officer.”
[2] Dit is duidelik uit die bestudering van die stukke en spesifiek die beskuldigde se pleit dat hy nie skuldig gepleit het aan poging tot moord, waaraan hy skuldig bevind is, en dat die skuldigbevinding om dié rede alleen tersyde gestel moet word. Dit sal uiter aard tot gevolg hê dat die vonnis ook tersyde gestel moet word,
[3] Bygevolg word die skuldigbevinding en vonnis ooreenkomstig die bepalings van artikel 304(4) van Wet 51 van 1977 tersyde gestel en word daar gelas dat die saak terugverwys word na die betrokke hof vir ‘n verhoor de novo voor ‘n ander voorsittende beampte.
______
G.F. WRIGHT, R
/sp
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