S v Mmako (515/10) [2011] ZAECGHC 73 (30 November 2011)

S v Mmako (515/10) [2011] ZAECGHC 73 (30 November 2011)

The magistrate failed to properly question the accused in terms of section 112(1)(b) of the Criminal Procedure Act. The questioning was unstructured and did not address each offence separately to ensure the accused admitted all elements. The accused pleaded not guilty to negligent driving, yet was convicted of it, and his responses indicated a possible defence. The convictions cannot stand as the requirements of section 112(1)(b) were not met. The convictions on all counts are set aside.

Citation
[2011] ZAECGHC 73
Parties
Applicant: The State; Respondent: Khomotso Lesiba Mmako
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
30 November 2011
Case Number
515/10
Procedural Posture
Criminal Review / Review
Outcome
Convictions on all three counts are set aside.
Judges
M Makaula, E Revelas
Legal Topics
Criminal Procedure Act Section 112, Guilty Plea Questioning, Elements of Offence, Negligent Driving, Driving Under Influence
Criminal Law Criminal Procedure Act Section 112 Guilty Plea Questioning Elements of Offence Negligent Driving Driving Under Influence

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Parties

The State

Applicant

Khomotso Lesiba Mmako

Respondent

Procedural Posture

Criminal Review / Review

Legal Issues

  1. 1 Whether the magistrate properly questioned the accused in terms of section 112(1)(b) of the Criminal Procedure Act.
  2. 2 Whether the accused admitted all the elements of the offences to which he pleaded guilty.
  3. 3 Whether a plea of not guilty to negligent driving should have been entered.

Ratio Decidendi

The magistrate failed to properly question the accused in terms of section 112(1)(b) of the Criminal Procedure Act. The questioning was unstructured and did not address each offence separately to ensure the accused admitted all elements. The accused pleaded not guilty to negligent driving, yet was convicted of it, and his responses indicated a possible defence. The convictions cannot stand as the requirements of section 112(1)(b) were not met. The convictions on all counts are set aside.

Court Disposition

Convictions on all three counts are set aside.

Orders

  • The convictions of the accused in respect of all three counts are set aside.