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South Africa Judgment

Free State High Court, Bloemfontein

S v Duze (618/2010) [2011] ZAFSHC 4 (6 January 2011)

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Source document

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

Applicant

Malibongwe Duze

Respondent

03

Procedural history

  1. Posture

    Review Application / High Court Review of Regional Court Conviction and Sentence

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2011] ZAFSHC 4

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Act 51 of 1977

Legislation

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