S v Mahlasela

• Jurisdiction: South Africa
• Judgment Date: 01 July 2002
• Citation: 2005 (1) SACR 269 (N)

S v Mahlasela
2005 (1) SACR 269 (N)

2005 (1) SACR p269

Citation	2005 (1) SACR 269 (N)
Case No	R954/2002
Court	Natal Provincial Division
Judge	Magid J and Moleko J
Heard	July 1, 2002
Judgment	July 1, 2002

Flynote : Sleutelwoorde B

Trial — Plea — Plea of guilty — Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 — Provisions of s 112(1)(b) applicable to charge in terms of s 36 of General Law Amendment Act 62 of 1955 in respect of any admission which accused might choose to make.

Headnote : Kopnota

The provisions of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 can be applied in the case of a C charge in terms of s 36 of the General Law Amendment Act 62 of 1955. It is therefore not impossible for an accused, where she or he has been charged with a contravention of s 36 of Act 62 of 1955 (failure to give a satisfactory account of possession of goods) to make an admission in terms of s 112(1)(b) of the Criminal Procedure Act. (At 271b - f.) D

Annotations:

Cases cited

Reported cases

S v Adams en Tien Ander Soortgelyke Sake 1986 (3) SA 733 (C): dictum at 744H - J applied E

S v Khumalo 1964 (1) SA 498 (N): applied

S v Martins 1986 (4) SA 934 (T): applied

S v Naidoo 1985 (2) SA 32 (N): dictum at 37H - 38A applied

S v Shabalala 1982 (2) SA 123 (T): referred to.

Legislation cited

Statutes

The F Criminal Procedure Act 51 of 1977, s 112(1)(b): see Juta's Statutes of South Africa 2003 vol 1 at 1-351

The General Law Amendment Act 62 of 1955, s 36: see Juta's Statutes of South Africa 2003 vol 1 at 1-677.

Case Information

Review. The facts appear from the reasons for judgment. G

Judgment

Magid J:

The accused was charged with a contravention of s 36 of Act 62 of 1955 (the section). He pleaded guilty and was convicted and sentenced to pay a fine of R900, failing which to serve a term of six months' imprisonment. That sentence was imposed on 28 January 2002 and the record was received by the H Registrar of this Court on automatic review on 2 May 2002. The accused having failed to pay the fine, he had no doubt served his whole sentence by the time the matter was first considered by a Judge of this Court. I have ascertained that his sentence was converted to correctional supervision during March 2002.

The magistrate's questioning of the accused in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (the I Act) reads as follows:

'Q.

Do you plead guilty freely and voluntarily?

A.

Yes.

Q.

Were you at Kokstad park on 10/01/2002 in the district of Mount Currie?

A.

Yes. J

2005 (1) SACR p270

Magid J

Q.

You were found in possession of 1 x motor vehicle stereo? A

A.

Yes.

Q.

You agree that you had reason to believe that it was stolen?

A.

Yes.

Q.

Did you give an explanation to the police in respect of the stereo?

A.

Yes.

Q.

What was your explanation? B

A.

I explained to the police that I spotted this stereo at the taxi rank.

Q.

Do you agree that this explanation is not satisfactory?

A.

Yes I agree that one would not have believed this explanation as it is not satisfactory.'

In my opinion these questions overlook the necessity, in order to obtain a conviction for a contravention of the section, for the State to establish that: C

(a)

the suspicion that the goods are stolen was formed in the mind of some person other than the accused, substantially contemporaneously with the finding of the accused in possession of them;

(b)

the subjective suspicion was based...