S v Magwete (A277/10) [2010] ZAGPPHC 540 (13 April 2010)

S v Magwete (A277/10) [2010] ZAGPPHC 540 (13 April 2010)

The court found that the evidence presented during sentencing revealed that the actual items stolen in counts 1 and 2 were not five tombstones each, but rather pieces from tombstones. The accused pleaded guilty to the theft as charged, and his admissions would have been the same had the charges been correctly framed. There was no reasonable possibility of prejudice to the accused if the charges were amended to reflect the evidence. The requirements for amending a charge on review were met, and the convictions on counts 1 and 2 were amended accordingly. The convictions on the remaining counts and the sentence were confirmed.

Citation
[2010] ZAGPPHC 540
Parties
Applicant: The State; Respondent: Matome Albert Magwete
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 April 2010
Case Number
A277/10
Procedural Posture
Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Counts 1 and 2 are amended to reflect the evidence; the accused is convicted on the amended counts; convictions on counts 3 to 8 and the sentence are confirmed.
Judges
W R C Prinsloo, H J Fabricius
Legal Topics
Amendment of Charge, Theft, Criminal Procedure Act, Prejudice to Accused
Criminal Law Amendment of Charge Theft Criminal Procedure Act Prejudice to Accused

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Matome Albert Magwete

Respondent

Procedural Posture

Criminal Review / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the convictions on counts 1 and 2 were in accordance with justice given the discrepancy between the charges and the evidence.
  2. 2 Whether the charges on counts 1 and 2 should be amended on review to reflect the evidence presented.
  3. 3 Whether the accused would suffer prejudice if the charges were amended after conviction.

Ratio Decidendi

The court found that the evidence presented during sentencing revealed that the actual items stolen in counts 1 and 2 were not five tombstones each, but rather pieces from tombstones. The accused pleaded guilty to the theft as charged, and his admissions would have been the same had the charges been correctly framed. There was no reasonable possibility of prejudice to the accused if the charges were amended to reflect the evidence. The requirements for amending a charge on review were met, and the convictions on counts 1 and 2 were amended accordingly. The convictions on the remaining counts and the sentence were confirmed.

Court Disposition

Counts 1 and 2 are amended to reflect the evidence; the accused is convicted on the amended counts; convictions on counts 3 to 8 and the sentence are confirmed.

Orders

  • Counts 1 and 2 are amended as described in the judgment.
  • The accused is convicted on counts 1 and 2 as amended.