S v Motseare (60/2011) [2011] ZAFSHC 29 (17 February 2011)

S v Motseare (60/2011) [2011] ZAFSHC 29 (17 February 2011)

The magistrate erred by sentencing the accused on count 1 before the trial on count 2 was completed. The accused's plea on count 2 amounted to a plea of guilty to a lesser charge, which the prosecutor did not accept. In such circumstances, the correct procedure is to enter a plea of not guilty on count 2 and proceed with the trial. Only after the determination of guilt on count 2 or otherwise should the magistrate sentence the accused. Accordingly, the sentence on count 1 is set aside and the matter is remitted to the magistrate for proper procedure.

Citation
[2011] ZAFSHC 29
Parties
Applicant: THE STATE; Respondent: ELIZABETH MPHO MOTSEARE
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
60/2011
Procedural Posture
Review Application / Review of Magistrate's Sentence and Procedure
Outcome
Sentence on count 1 set aside; matter remitted to magistrate for further proceedings in accordance with the judgment.
Judges
C. H. G. Van der Merwe, A. Kruger
Legal Topics
Theft, Plea Procedure, Section 112 Criminal Procedure Act, Sentence Setting Aside
Criminal Law Theft Plea Procedure Section 112 Criminal Procedure Act Sentence Setting Aside

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Parties

THE STATE

Applicant

ELIZABETH MPHO MOTSEARE

Respondent

Procedural Posture

Review Application / Review of Magistrate's Sentence and Procedure

Legal Issues

  1. 1 Whether the magistrate erred in sentencing the accused on count 1 before the determination of count 2.
  2. 2 How the plea in respect of count 2 should be treated when the prosecutor does not accept the plea to a lesser charge.
  3. 3 What procedure should be followed after the prosecutor rejects the plea on count 2.

Ratio Decidendi

The magistrate erred by sentencing the accused on count 1 before the trial on count 2 was completed. The accused's plea on count 2 amounted to a plea of guilty to a lesser charge, which the prosecutor did not accept. In such circumstances, the correct procedure is to enter a plea of not guilty on count 2 and proceed with the trial. Only after the determination of guilt on count 2 or otherwise should the magistrate sentence the accused. Accordingly, the sentence on count 1 is set aside and the matter is remitted to the magistrate for proper procedure.

Court Disposition

Sentence on count 1 set aside; matter remitted to magistrate for further proceedings in accordance with the judgment.

Orders

  • The sentence in respect of count 1 is set aside.
  • The matter is remitted to the magistrate to be dealt with in accordance with this judgment.