S v Molefe; S v Goodman (R346-2018; R348-2018) [2018] ZAFSHC 217 (24 December 2018)
- Citation
- [2018] ZAFSHC 217
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Musi
- Case number
- R346/2018; R348/2018
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Musi
- Case number
- R346/2018; R348/2018
On this page
Professional case brief
Research organized from the available case record
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
ApplicantThabo Moses Molefe
RespondentKgosimang Goodman
Respondent03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether section 112(1)(a) of the Criminal Procedure Act was correctly applied to the offence of theft.
- 02
Whether the proceedings were in accordance with justice given the seriousness of the offence.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
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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