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South Africa Judgment

Free State High Court, Bloemfontein

S v Motsamai (1335/2006) [2007] ZAFSHC 76 (1 February 2007)

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01

Holding and result

The accused did not admit to housebreaking or theft during the plea proceedings, as he claimed to have believed the liquor belonged to his companion and that he had permission to take it. He did not acknowledge the intention to deprive the owner or the unlawfulness of his conduct. Therefore, the requirements for a conviction on a guilty plea under section 112(1)(b) were not met. The magistrate should have entered a plea of not guilty in terms of section 113. The conviction and sentence were not properly entered and must be set aside. The matter is remitted to the magistrate for proper procedure under section 312.

Court disposition

Conviction and sentence set aside; matter remitted to magistrate for proper procedure.

Orders

  • The conviction and sentence are set aside.
  • The matter is remitted to the magistrate in terms of section 312 of Act 51 of 1977.

02

Material facts

Parties

THE STATE

Respondent

THABO MOTSAMAI

Applicant

03

Procedural history

  1. Posture

    Review Application / Review of Conviction and Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused stated during questioning that he believed the liquor belonged to his companion, that he had permission from the owner, and did not intend to deprive the owner. He did not admit to housebreaking or theft, nor did he realise he was committing an offence.
Respondent
The State relied on the accused's plea of guilty and the facts stated in the charge sheet, which alleged theft of six bottles of liquor. The magistrate acknowledged upon enquiry that the accused did not admit all elements of the offence.

05

Court’s reasoning

  1. 01

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

    A conviction on a guilty plea requires the accused to admit all elements of the offence during questioning under section 112(1)(b) of the Criminal Procedure Act.

  2. 02

    Section 113 Criminal Procedure Act 51 of 1977

    If the accused does not admit all elements, a plea of not guilty must be entered in terms of section 113.

  3. 03

    Section 312 Criminal Procedure Act 51 of 1977

    Where a conviction is not properly entered, the matter must be remitted to the magistrate under section 312.

06

Ratio, limits and disposition

Ratio decidendi

The accused did not admit to housebreaking or theft during the plea proceedings, as he claimed to have believed the liquor belonged to his companion and that he had permission to take it. He did not acknowledge the intention to deprive the owner or the unlawfulness of his conduct. Therefore, the requirements for a conviction on a guilty plea under section 112(1)(b) were not met. The magistrate should have entered a plea of not guilty in terms of section 113. The conviction and sentence were not properly entered and must be set aside. The matter is remitted to the magistrate for proper procedure under section 312.

Obiter and limits

  • The veracity of the accused's statements is not determinative; the legal requirement is admission of all elements of the offence.
  • Magistrates must ensure that all statutory requirements for conviction on a guilty plea are strictly complied with.

Court disposition

Conviction and sentence set aside; matter remitted to magistrate for proper procedure.

  • The conviction and sentence are set aside.
  • The matter is remitted to the magistrate in terms of section 312 of Act 51 of 1977.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment text

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Source document

Free State High Court, Bloemfontein

Judgment

[2007] ZAFSHC 76

IN THE HIGH COURT

OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Review Case No.: 1335/2006

In the case between:

THE STATE

and

THABO MOTSAMAI

CORAM: VAN DER MERWE, J et VAN ZYL, J

JUDGEMENT: VAN DER MERWE, J

_____________

DELIVERED ON: 1 FEBRUARY 2007

[1] In consequence of his plea of guilty, the accused was convicted of housebreaking with intent to steal and theft and was sentenced to 6 months imprisonment.

[2] When the charge was put to the accused, he pleaded guilty on the basis thereof that 4 bottles of liquor were involved and not 6 as stated in the charge sheet. However, during questioning in terms of section 112(1)(b) of the Criminal Procedure Act, he said that when he and his companion reached the building in question, they found that a windowpane had already been removed and that they entered into the building through this opening. He said that he and his companion then removed the bottles of liquor. However, the accused said that he thought that the liquor belonged to his companion, that he did not at the time realise that he was committing an offence, that he had the permission of the owner thereof, that is his companion, to do so and that he did not have the intention to deprive the owner of the liquor thereof.

[2] From what is stated above it is clear that whatever one may think of the veracity of the statements of the accused, he did not admit to housebreaking nor theft. A plea of not guilty should have been entered in terms of section 113 of the Criminal Procedure Act. This is acknowledged by the magistrate upon enquiry. The conviction and sentence must therefore be set aside. In terms of section 312 of the Criminal Procedure Act, the matter must be remitted to the magistrate.

[3] In the result the conviction and sentence are set aside and the matter is remitted to the magistrate in terms of section 312 of Act Nr. 51 of 1977.

________

C.H.G. VAN DER MERWE, J

I concur.

_____

C. VAN ZYL, J

/em

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Authorities

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Criminal Procedure Act 51 of 1977

Legislation

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