Leopeng and Others v Meyer NO and Another

• Judge: Eloff JP
• Judgment Date: 04 November 1991
• Citation: 1993 (1) SACR 292 (T)
• Hearing Date: 04 November 1991
• Court: Transvaal Provincial Division

Eloff JP:

The 12 applicants in these review proceedings stood charged on a count of the murder of one Ben Shongwe and of the attempted murder of C Simon Dlameng and Philemon Mondlani. After a number of appearances in the magistrate's court of Pretoria, the applicants were on 14 March 1991 notified that the proceedings would be postponed to 3 April 1991 on which date the prosecutor would, in terms of s 119 of the Criminal Procedure Act, put the charges to the applicants, who would be required to plead thereto. Prior to the hearing on 14 March 1991 a request for further D particulars to the charge was presented on behalf of the applicants. The State responded on 13 March 1991, refusing to furnish the further particulars sought and stating that counts 2 and 3, those of attempted murder, would not be put to the applicants when they appeared in court on 3 April 1991. The charges against some of the applicants were also to be withdrawn. The applicants nevertheless persisted in their attitude. When E the matter was eventually dealt with on 4 April 1991, objection was, in terms of s 85(1)(d) of the Act, made to the charge on the ground that it failed to show adequate particularity of the acts attributed to the applicants. After hearing argument the magistrate, who is cited as first respondent in these proceedings, dismissed the objection. She gave as her reason that the charge as formulated set out the essential requirements of s 84 for a chargesheet and that there was accordingly sufficient F particularity to enable the applicants to plead.

I interpose to state that it seems as though the court, in adopting the attitude which it did, placed emphasis mainly on the requirements of s 85(1)(a) of the Act.

The prosecutor then urged that the applicants be called upon to plead. The magistrate decided to postpone the matter to 18 April 1991, on which date the applicants would be required to plead. The applicants decided to G take the proceedings on review, and an application to that effect was served and filed. Although the application was then pending, the applicants were on 18 April 1991 asked to plead. It was requested on their behalf that the proceedings be adjourned until the review proceedings had been disposed of, but that request was turned down. The applicants then all declined to plead. Pleas of not guilty were recorded.

The events of 18 April 1991 were dealt with in a supplementary affidavit which was made on behalf of the applicants. They also filed an amended H notice of motion. The main relief now sought is for the setting aside of (a) the magistrate's decision dismissing the objections and (b) the decision to record the pleas of the applicants as pleas of not guilty.

The questions which arose in these proceedings in large measure involve the interpretation of s 119 of the Criminal Procedure Act and the sections I related thereto.

Section 119 reads:

'Accused to plead in magistrate's court on instructions of Attorney-General

When an accused appears in a magistrate's court and the alleged offence may be tried by a superior Court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court, the prosecutor may, notwithstanding the provisions J of s 75, on the instructions of the

Eloff JP

A Attorney-General, whether in general or in any particular case, put the charge, as well as any other charge which shall, in terms of s 82, be disposed of in a superior Court, to the accused in the magistrate's court, and the accused shall, subject to the provisions of ss 77 and 85, be required by the magistrate to plead thereto forthwith.'

B It was pointed out in S v Singh 1986 (4) SA 263 (C) at 266A-C that the section creates a mechanism whereby, in what is essentially a Supreme Court case, some idea might be formed of the extent of the dispute between the State and the accused. To that end the State puts the charge to the accused who is to plead thereto.

Should he plead guilty, the provisions of s 121(1) apply. The accused is C questioned in terms of s 112(1)(b) in order to determine whether he admits the allegations made in the charge. Once that is done the court proceeds further in terms of s 121. Should the accused plead not guilty, the magistrate may, in terms of s 115, ask him to set out the...