S v M and Another

• Jurisdiction: South Africa
• Judge: Maya J and Peko J
• Judgment Date: 25 February 2003
• Docket Number: 202675
• Court: Transkei Division
• Hearing Date: 25 February 2003
• Citation: 2003 (2) SACR 212 (Tk)

Maya J:

On 21 February 2001 the unrepresented accused appeared before the magistrate, Willowvale, Mr K B Tabu, on charges of housebreaking and theft of a firearm and its ammunition. There is no indication of the nature of their pleas on the I record, the magistrate having merely recorded 'PP suggest (sic) that accused persons (sic) plea (sic) be accepted as they stand'. I am presuming that they pleaded guilty, as the magistrate proceeded to question them, presumably in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (hereinafter 'the J

Maya J

Act'). After such questioning the 16-year-old accused No 1 was convicted as charged and A the 18-year-old accused No 2 on 'possession', which I presume, having regard to the rest of the record and his reasons for convicting him, means receiving stolen property knowing it to be stolen. Accused No 1 was then sentenced to undergo two years' imprisonment on each count. Accused No 2 was sentenced to undergo 18 months' imprisonment. The proceedings were finalised on the same day, 21 February 2001. B

The record of the proceedings reached the Registrar of this Court for automatic review on 22 March 2001, long after the week envisaged in s 303 of the Act which provides for the transmission of the record to the High Court for review. On 23 March 2001 I sent the magistrate a memorandum querying some aspects of the proceedings, urgently seeking his reasons. C

In a reply received by the Registrar only on 3 October 2001, which contains no explanation for the undue delay, despite the fact that his establishment apparently received the query in May 2001 judging from the official stamp mark appearing thereon, he says: D

'Ad 1

As accused No 1 from the very onset had pleaded guilty to the charges against him the court felt that as that was an indication on his part that he had no defence in the matter with (sic) the same token that meant that even his parent would not have had any role to play as there was nothing he was going to defend accused on. E

Let the judicial officer also hasten to say that if, for instance, accused No 1 had pleaded not guilty the court would have been bond (sic) to coply (sic) with the provisions of the relevant sections of the Act as are mentioned by the honourable Judge without any hesitation. F

Ad 2

Due to non-availability of the probation officers in the area more often than not it becomes impossible for the court to invoke the provisions of the said section of the Act hence they were not invoked.

When regard is had to the fact that housebreaking and theft - which offences are the most prevalent ones in this area - were convicted (sic) and a lethal weapon like a firearm stolen, one does not hesitate to answer the question posed in the native (sic) and instead say the sentence is G the most appropriate one under the circumstances.

With regard to accused No 2.

He received a firearm from accused No 1 knowing fully well that accused No 1 was not working and as such it being obvious that accused No 1 had stolen the said firearm. H

He further says that he received and kept this firearm with him knowing fully well that by doing that he was committing an offence for which, if found (sic), he could be convicted. He, however...