S v Tsipane and Another (476/2007) [2007] ZAFSHC 91 (6 September 2007)

S v Tsipane and Another (476/2007) [2007] ZAFSHC 91 (6 September 2007)

The magistrate erred by convicting the accused of theft without first asking them if she could record a plea of guilty to theft, as required by section 312 of the Criminal Procedure Act. A conviction under section 112 cannot be entered on a charge other than that to which the accused pleaded guilty, unless the accused consents to the lesser alternative charge. The convictions and sentences must therefore be set aside and the matter referred back to the magistrate to comply with the correct procedure.

Citation
[2007] ZAFSHC 91
Parties
Applicant: The State; Respondent: Sabata Piet Moalusi; Respondent: Petrus Tsipane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 September 2007
Case Number
476/2007
Procedural Posture
Review Application / Review of Magistrate's Conviction and Sentence
Outcome
Convictions and sentences of both accused are set aside. The matter is referred back to the magistrate to comply with section 112(1)(b) of the Criminal Procedure Act.
Judges
Kruger, C.J. Musi
Legal Topics
Plea Procedure, Conviction on Alternative Charge, Criminal Procedure Act Section 112, Criminal Procedure Act Section 312
Criminal Law Plea Procedure Conviction on Alternative Charge Criminal Procedure Act Section 112 Criminal Procedure Act Section 312

Case Brief

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Parties

The State

Applicant

Sabata Piet Moalusi

Respondent

Petrus Tsipane

Respondent

Procedural Posture

Review Application / Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the magistrate was entitled to convict the accused on theft when they pleaded guilty to housebreaking with intent to steal and theft.
  2. 2 Whether the magistrate should have asked the accused if she could record a plea of guilty to theft before convicting them on that charge.
  3. 3 Whether the procedure under section 112(1)(b) of the Criminal Procedure Act was properly followed.

Ratio Decidendi

The magistrate erred by convicting the accused of theft without first asking them if she could record a plea of guilty to theft, as required by section 312 of the Criminal Procedure Act. A conviction under section 112 cannot be entered on a charge other than that to which the accused pleaded guilty, unless the accused consents to the lesser alternative charge. The convictions and sentences must therefore be set aside and the matter referred back to the magistrate to comply with the correct procedure.

Court Disposition

Convictions and sentences of both accused are set aside. The matter is referred back to the magistrate to comply with section 112(1)(b) of the Criminal Procedure Act.

Orders

  • The convictions and sentences of both accused are set aside.
  • The magistrate is ordered, in terms of section 312 of the Criminal Procedure Act 51 of 1977, to comply with the provisions of section 112(1)(b).