S v Kethani

• Jurisdiction: South Africa
• Judge: Dhlodhlo ADJP and Sangoni J
• Judgment Date: 25 April 2006
• Docket Number: CA&R15/06
• Court: Ciskei High Court
• Hearing Date: 25 April 2006
• Citation: 2006 (2) SACR 150 (CK)

Dhlodhlo ADJP:

[1] This case came to this Court by way of automatic review.

[2] The accused, who elected to conduct her own defence, was charged with theft. The first alternative charge is contravening s 36 C of the General Law Amendment Act 62 of 1955 (ie, being in possession of goods reasonably suspected to be stolen and being unable to give a satisfactory account of such possession).

[3] The second alternative charge is contravening s 37(1) of the General Law Amendment Act (ie, receiving into one's D possession from another person goods without having a reasonable cause for believing at the time of such acquisition or receipt that such property was the property of such person).

[4] The accused pleaded not guilty to the main charge and to the second alternative charge, but pleaded guilty to the first alternative E charge.

[5] After the accused pleaded, the magistrate explained to the accused the provisions of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, after which she questioned her in terms of s 112(1)(b).

[6] After questioning the accused, the magistrate, acting in terms of s 113 of the Criminal Procedure Act, entered a plea of not F guilty in respect of the first alternative charge.

[7] The trial proceeded and evidence was adduced.

[8] The accused was found guilty of theft and sentenced to pay a fine of eight hundred rand (R800) or, in default of payment of such G fine, to undergo imprisonment for eight (8) months, which was wholly suspended.

[9] The record of the proceedings does not show that the public prosecutor accepted the plea of guilty to the first alternative charge H before the magistrate questioned the accused in terms of s 112(1)(b).

[10] Responding to the query whether or not it was regular to question the accused without the acceptance by the public prosecutor of the guilty plea, the magistrate states:

'The magistrate did not ask whether the prosecutor accepted the plea of guilty on the first alternative count as the accused did not admit the elements of the offence and a plea of guilty was altered to a plea of not guilty and thereafter evidence was led by the State.'

[11] Subsection (1) of the section provides, among others, that: J

Dhlodhlo ADJP

'Where an accused at a summary trial in any Court pleads guilty to the offence charged, or to an offence of which he may be convicted A on the charge and the prosecutor accepts that plea. . . .'

(My emphasis.)

[12] According...