S v Sithole (174/2014) [2014] ZAFSHC 211 (6 November 2014)

S v Sithole (174/2014) [2014] ZAFSHC 211 (6 November 2014)

The accused's plea statement did not admit all elements of the trespass offence, specifically the fact of entering or being upon the land. This omission rendered the conviction and sentence on count 1 invalid. Consequently, the order that sentences on counts 2 and 3 run concurrently with count 1 must also be set aside. The matter is remitted to the trial court for proper consideration in terms of section 312 of the Criminal Procedure Act, with instructions to take into account the cumulative effect of sentences if a new sentence on count 1 is imposed.

Citation
[2014] ZAFSHC 211
Parties
Applicant: The State; Respondent: Fungani Sithole
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 November 2014
Case Number
174/2014
Procedural Posture
Review Application / Special Review
Outcome
Conviction and sentence on count 1, and the concurrency order for counts 2 and 3 with count 1, are set aside. The matter is remitted to the trial court for reconsideration.
Judges
E.K. Tsatsi, C.H.G. van der Merwe
Legal Topics
Trespass Act, Attempted Theft, Illegal Foreigner, Plea Procedure, Sentencing Concurrency
Criminal Law Trespass Act Attempted Theft Illegal Foreigner Plea Procedure Sentencing Concurrency

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Parties

The State

Applicant

Fungani Sithole

Respondent

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the accused admitted all elements of the trespass offence in his plea statement.
  2. 2 Whether the conviction and sentence on count 1 were valid given the incomplete admission.
  3. 3 Whether the concurrency order for sentences on counts 2 and 3 with count 1 should stand.

Ratio Decidendi

The accused's plea statement did not admit all elements of the trespass offence, specifically the fact of entering or being upon the land. This omission rendered the conviction and sentence on count 1 invalid. Consequently, the order that sentences on counts 2 and 3 run concurrently with count 1 must also be set aside. The matter is remitted to the trial court for proper consideration in terms of section 312 of the Criminal Procedure Act, with instructions to take into account the cumulative effect of sentences if a new sentence on count 1 is imposed.

Court Disposition

Conviction and sentence on count 1, and the concurrency order for counts 2 and 3 with count 1, are set aside. The matter is remitted to the trial court for reconsideration.

Orders

  • The conviction and sentence on count 1 as well as the order that the sentences on counts 2 and 3 must be served concurrently with the sentence on count 1 are set aside.
  • The matter is remitted to the trial court in terms of section 312 of the Criminal Procedure Act.