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South Africa Judgment

Free State High Court, Bloemfontein

S v Molefe; S v Goodman (R346-2018; R348-2018) [2018] ZAFSHC 217 (24 December 2018)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court held that section 112(1)(a) of the Criminal Procedure Act should only be used for minor offences and not for common law offences such as theft, which are generally serious. The proceedings were not in accordance with justice because the accused was convicted under section 112(1)(a) for theft, a serious offence. Accordingly, both the conviction and sentence were set aside.

Court disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.

02

Material facts

Parties

The State

Applicant

Thabo Moses Molefe

Respondent

Kgosimang Goodman

Respondent

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The acting senior magistrate submitted the matter for special review, arguing that section 112(1)(a) should only be used for minor offences and not for common law offences such as theft, which are generally serious.
Respondent
The accused pleaded guilty to theft and was convicted under section 112(1)(a) of the Criminal Procedure Act 51 of 1977. No further substantive argument was advanced by the respondents.

05

Court’s reasoning

  1. 01

    Section 112(1)(a) Criminal Procedure Act 51 of 1977

    Section 112(1)(a) of the Criminal Procedure Act should only be utilized for minor offences and is not advisable for common law offences, which are generally serious.

  2. 02

    S v Tshabalala (102/2015) [2016] ZAFSHC 90 (5 May 2016); S v Addabba; S v Ngeme; S v Van Wyk 1992 (2) SACR 325 (T); Pietersen v S A472/2016 WCHC; S v Van Wyk [2014] JOL 31649 (FB); Msiya v S (AR654/2017) [2018] ZAKZPHC 41 (31 August 2018)

    The use of section 112(1)(a) for serious offences is not in accordance with justice.

06

Ratio, limits and disposition

Ratio decidendi

The court held that section 112(1)(a) of the Criminal Procedure Act should only be used for minor offences and not for common law offences such as theft, which are generally serious. The proceedings were not in accordance with justice because the accused was convicted under section 112(1)(a) for theft, a serious offence. Accordingly, both the conviction and sentence were set aside.

Obiter and limits

  • It is not advisable to use section 112(1)(a) for common law offences, which are generally serious offences.
  • Section 112(1)(a) should be reserved for minor offences to ensure justice is served.

Court disposition

Conviction and sentence set aside.

  • The conviction and sentence are set aside.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2018] ZAFSHC 217

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Review No.: R346/2018

In the review of:-

THE

STATE

and

THABO

MOSES MOLEFE

Review No.: R348/2018

KGOSIMANG

GOODMAN

CORAM: MUSI, AJP

JUDGMENT BY: MUSI, AJP

DELIVERED ON: 24 December 2018

[1] This matter was sent on special review by the acting senior magistrate, Bloemfontein.

[2] The accused was charged with theft. He was convicted in terms of section 112(1)(a)[1] of Act 51/1977 after a plea of guilty.

[3] It has been said on numerous occasions that section 112(1)(a) should only be utilized for minor offences. The acting senior

magistrate refers to some of the cases in which this principle was enunciated.[2]

[4] I may just add that it is not advisable to use section 112(1)(a) for common law offences, which are generally serious offences.

[5] I agree with the acting senior magistrate that these proceedings were not in accordance with justice.

[6] I make the following order.

The conviction and sentence are set aside.

____

C. J. MUSI, J

[1] Section 112(1)(a) reads as follows: “The presiding judge may, if he is of the opinion that the offence does not merit the sentence of death, or the presiding judge, regional magistrate or magistrate may, if he is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a whipping or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he has pleaded guilty on his plea of guilty only and- (i) impose any competent sentence, other than the sentence of death or imprisonment or any other form of detention without the option of a fine or a whipping or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette; or (ii) deal with the accused otherwise in accordance with law;”

[1] Section 112(1)(a) reads as follows:

“The presiding judge may, if he is of the opinion that the offence does not merit the sentence of death, or the presiding judge, regional magistrate or magistrate may, if he is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a whipping or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, convict the accused in respect of the offence to which he has pleaded guilty on his plea of guilty only and-

(i) impose any competent sentence, other than the sentence of death or imprisonment or any other form of detention without the option of a fine or a whipping or a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette; or

(ii) deal with the accused otherwise in accordance with law;”

[2] S v Tshabalala (102/2015) [2016] ZAFSHC 90 (5 May 2016); S v Addabba; S v Ngeme; S v Van Wyk 1992 (2) SACR 325 (T); Pietersen v S A472/2016 WCHC; S v Van Wyk [2014] JOL 31649 (FB); Msiya v S (AR654/2017) [2018] ZAKZPHC 41 (31 August 2018).

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Authorities

Authorities used by the court

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

S v Tshabalala (102/2015) [2016] ZAFSHC 90 (5 May 2016)

Case cited

S v Addabba; S v Ngeme; S v Van Wyk 1992 (2) SACR 325 (T)

Case cited

Pietersen v S A472/2016 WCHC

Case cited

S v Van Wyk [2014] JOL 31649 (FB)

Case cited

Msiya v S (AR654/2017) [2018] ZAKZPHC 41 (31 August 2018)

Case cited

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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