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South Africa Judgment

Free State High Court, Bloemfontein

S v Mohapi (58/2011) [2011] ZAFSHC 94 (14 April 2011)

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Source document

01

Holding and result

The accused did not admit all the elements of the offence during the plea proceedings, specifically stating she did not intend to injure the complainant. The magistrate should have recorded a plea of not guilty in terms of section 113 of Act 51 of 1977. As a result, the conviction and sentence are set aside and the matter is remitted for proper plea recording.

Court disposition

Conviction and sentence set aside; magistrate directed to record a plea of not guilty.

Orders

  • The conviction and sentence are set aside in terms of section 312 of Act 51 of 1977.
  • The magistrate is directed to record a plea of not guilty as contemplated in section 113 of Act 51 of 1977.

02

Material facts

Parties

The State

Applicant

Lerato Alina Mohapi

Respondent

Amounts and remedies

  • Fine Imposed: ZAR 1,500

03

Procedural history

  1. Posture

    Review Application / High Court Review Under Section 302 of Act 51 of 1977

04

Questions and positions

Legal issues

Party arguments

Applicant
The State relied on the accused's plea of guilty and her responses to questions under section 112(1)(b), which indicated she and the complainant were fighting but did not intend to injure the complainant.
Respondent
The accused stated she did not intend to injure the complainant, suggesting she did not admit all elements of the offence, and therefore a plea of not guilty should have been recorded.

05

Court’s reasoning

  1. 01

    Section 112(1)(b) and section 113 of Act 51 of 1977

    A conviction on a plea of guilty requires the accused to admit all elements of the offence; if not, section 113 of Act 51 of 1977 requires a plea of not guilty to be entered.

  2. 02

    Section 312 of Act 51 of 1977

    On review, the court must set aside a conviction and sentence if the plea procedure was not properly followed and direct the magistrate to record a plea of not guilty.

06

Ratio, limits and disposition

Ratio decidendi

The accused did not admit all the elements of the offence during the plea proceedings, specifically stating she did not intend to injure the complainant. The magistrate should have recorded a plea of not guilty in terms of section 113 of Act 51 of 1977. As a result, the conviction and sentence are set aside and the matter is remitted for proper plea recording.

Obiter and limits

  • The delay in the review process was caused by late receipt of the transcribed record from the recording company.

Court disposition

Conviction and sentence set aside; magistrate directed to record a plea of not guilty.

  • The conviction and sentence are set aside in terms of section 312 of Act 51 of 1977.
  • The magistrate is directed to record a plea of not guilty as contemplated in section 113 of Act 51 of 1977.

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 94

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH

AFRICA

Review No: 58/2011

In the matters between:

THE STATE

and

LERATO ALINA MOHAPI

_____________

JUDGMENT BY: KRUGER, J

DELIVERED ON: 14 APRIL 2011

[1] This is a review under section 302 of Act 51 of 1977. The accused was on 6 December 2010 convicted on her plea of guilty of assault with intent to do grievous bodily harm in the magistrates’ court at Zastron and sentenced to 9 months’ imprisonment, wholly suspended and further given a fine of R1 500,00 or 3 months’ imprisonment. The J4 does not indicate whether the fine was paid. The review was only received by the registrar on 9 February 2011 as a result of the fact that the transcribed record was only received from the recording company on 28 February 2011.

[2] In answer to questions under section 112(1)(b) by the magistrate the accused said that she and the complainant were fighting and that she did not intend to injure the complainant. Jordaan J asked the magistrate whether the accused admitted all the elements of the offence. The magistrate agrees that a plea of not guilty in terms of section 113 of Act 51 of 1977 should have been recorded.

[3] The following order is made:

In terms of section 312 of Act 51 of 1977 the conviction and sentence are set aside and the magistrate is directed to record a plea of not guilty as contemplated in section 113 of Act 51 of 1977.

____

A. KRUGER, J

/EB

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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

Legislation referenced in the available case record.

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