S v Elifas

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Salionga J and Small AJ
• Judgment Date: 25 October 2021
• Docket Number: CR 20/2021
• Hearing Date: 25 October 2021
• Court: Northern Local Division, Oshakati
• Citation: 2021 JDR 3023 (NmO)

Salionga J (Small AJ concurring):

[1]

The accused person in this matter appeared in the magistrate's court for the district of Oshakati on two counts of theft.

[2]

On both counts it was alleged that she stole cash money from two different individuals. On 5 February 2021 when both charges were put to her, she had initially pleaded guilty on both counts. After being questioned in terms of section 112 (1) (b) of the Criminal Procedure Act, 51 of 1977 as amended, she was convicted on count 1. Her plea of guilty was altered in terms of section 113 of the CPA after she failed to admit all the elements of the charge on the second count.

[3]

The matter was thereafter postponed to 11 February 2021 for trial. On this date the prosecutor informed the court that he was closing his case on count 2 and that a section 174 discharge be granted. Accused was then discharged in terms of section 174 of the CPA on the second count. For some reason the magistrate decided to explain accused's rights at the close of the State case and placed her on her defence on count 1, she remained silent and had no witnesses to call, the magistrate convicted her (again) and she was subsequently sentenced.

[4]

On review the following query was directed to the magistrate:

'1. The accused after admitting all the elements of the offence on the 1st count and correctly convicted, was it still necessary for the magistrate to put him on her defence on the same count?

2021 JDR 3023 p3

Salionga J (Small AJ concurring):

2. The magistrate having correctly altered a plea of guilty to not guilty in terms of S113 of the Act, did the prosecutor had authority to stop the proceedings on the 2nd count taking into consideration the provisions of section 6 (b) of the Criminal Procedure Act?'

[5]

In the reply the magistrate indicated that that she had merely noted the guilty plea and conceded that she had erroneously continued with the matter to trial. Secondly, the magistrate conceded that the prosecutor did not have the authority to stop the proceedings and that she was wrong by allowing the state to close its case without leading evidence or producing a Prosecutor-General's Decision to stop the prosecution on count 2.

[6]

I fail to understand what the learned magistrate meant when she said that the guilty plea was merely noted especially after the magistrate had indicated that she was satisfied that all the elements of the offence were satisfied. The record...