S v Sithole (174/2014) [2014] ZAFSHC 211 (6 November 2014)
- Citation
- [2014] ZAFSHC 211
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- E.K. Tsatsi, C.H.G. van der Merwe
- Case number
- 174/2014
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- E.K. Tsatsi, C.H.G. van der Merwe
- Case number
- 174/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
02
Material facts
Parties
The State
ApplicantFungani Sithole
RespondentAmounts and remedies
- Fine on Count 2: ZAR 1,200
- Fine on Count 3: ZAR 900
03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the accused admitted all elements of the trespass offence in his plea statement.
- 02
Whether the conviction and sentence on count 1 were valid given the incomplete admission.
- 03
Whether the concurrency order for sentences on counts 2 and 3 with count 1 should stand.
Party arguments
- Applicant
- The State relied on the accused's guilty plea and accompanying statement under section 112(2) of the Criminal Procedure Act, which was intended to cover all elements of the offences charged.
- Respondent
- The accused, legally represented, pleaded guilty but did not explicitly admit to entering or being upon the land in question for count 1, resulting in an incomplete admission of the offence's elements.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act 51 of 1977, section 112(2)
A conviction based on a guilty plea requires that all elements of the offence be admitted by the accused.
- 02
Criminal Procedure Act 51 of 1977, section 312
Where an accused does not admit all elements of the offence, the conviction and sentence must be set aside and the matter remitted to the trial court.
- 03
S v Lalsing 1990 (1) SACR 443 (N); S v Mngadi 1991 (1) SACR 313 (T); S v Hatton 1998 (2) SACR 474 (E)
When sentences are imposed for multiple counts, the court must consider the cumulative effect and may order concurrency of sentences.
06
Ratio, limits and disposition
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.
Obiter and limits
- The trial court must ensure that all elements of an offence are admitted before accepting a guilty plea.
- When reconsidering sentence, the court should be mindful of the cumulative impact of multiple sentences and the possibility of concurrency.
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.
- 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.
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
Case No: 174/2014
DATE: 06 NOVEMBER 2014
In the matter between:
THE STATE
And
FUNGANI SITHOLE
CORAM: VAN DER MERWE, J et TSATSI, AJ
JUDGMENT BY: TSATSI, AJ
DELIVERED ON: 6 NOVEMBER 2014
[1] The matter was referred to this court for special review.
[2] The accused was charged with three counts, namely:
2.1 Contravention of the provision of section 1(1) read with section 1(1A), 1(2) and 2 of the Trespass Act 6 of 1959 and further read with section 250(1)(d) of the Criminal Procedure Act 51 of 1977 (the Act) – trespass.
2.2 Attempted theft.
2.3 Contravention of the provision of section 49(1)(a) read with sections 1, 10, 25 and 26 of the Immigration Act 113 of 2000 – illegal foreigner.
[3] The accused, who was legally represented, pleaded guilty. His statement in terms of section 112(2) of the Act was handed in. The accused was upon conviction of the crimes as charged sentenced as follows:
3.1 On count 1 – He was sentenced to one year direct imprisonment.
3.2 On count 2 – He was fined R1 200.00 or four months imprisonment.
3.3 On count 3 – He was fined R900.00 or three months imprisonment.
3.4 It was ordered that the sentences on count 2 and 3 run concurrently with the sentence on count 1.
[4] The accused was declared unfit to possess a firearm.
[5] As a result of an oversight the statement in terms of section 112(2) did not indicate that the accused admitted that he entered on or was upon the land in question. The accused therefore did not admit all the elements of offence in count 1.
[6] In the result the conviction and sentence on count 1 as well as the order that the sentences on counts 2 and 3 be served concurrently with the sentence on count 1, must be set aside and the matter remitted to the trial court in terms of section 312 of the Act. If sentence on count 1 is imposed afresh, the court must of course take into account the cumulative effect of the sentences on counts 1, 2 and 3 and it may order that the alternative sentence of imprisonment on counts 2 and 3 run concurrently with a sentence of imprisonment on count 1 (see S v Lalsing 1990 (1) SACR 443 (N), S v Mngadi 1991 (1) SACR 313 (T) and S v Hatton 1998 (2) SACR 474 (E)).
[7] Accordingly the following order is made:
7.1 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.
7.2 The matter is remitted to the trial court in terms of section 312 of the Act.
E. K. TSATSI, AJ
I agree.
C. H.G. VAN DER MERWE, J
Ebeket
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