S v Majola

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo J and L Vukeya J
• Judgment Date: 24 December 2021
• Docket Number: C1181/2021
• Hearing Date: 24 December 2021
• Citation: 2022 JDR 0267 (MN)

REVIEW JUDGMENT:

Ratshibvumo J:

Introduction:

[1]

This matter was laid before me as a review case in terms of section 302 of Act 51 of 1977 (the Criminal Procedure Act) from the District of Witbank. The accused was charged for theft of four chocolates valued at R72.45. The crime

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was alleged to have taken place on 29 July 2021at the Witbank Spar Supermarket. He has been in custody since then. He was convicted following a guilty plea and sentenced on 20 August 2021 to 24 (twenty-four) months imprisonment.

[2]

Upon perusal of the trial record, it was conspicuously incomplete in that It was only the sentencing part without the plea and judgment. It took another month for the trial Magistrate to avail the complete trial record at my request. It appears she was unaware that she had sent an incomplete record until she was alerted to it by that request. Once a complete record was made available, I immediately requested the office of the Director of Public Prosecutions (the DPP) to comment on the sentence imposed. Office of the DPP responded within 24 hours. The court is indebted to Senior Advocate Smith and the DPP, Advocate Mpolweni who gave this matter the necessary urgency with a view that if possible, the accused may spend Christmas with his family.

Questions in terms of section 112(1)(b) of the Criminal Procedure Act.

[3]

Before dealing with the sentence, I am obliged to make a remark on the questions posed by the magistrate in terms of section 112(1)(b) of Act 51 of 1977 (the Criminal Procedure Act). The accused was unrepresented and indicated he wanted to plead guilty to the charge. The questions and answers that led to the conviction of the accused are brief:

COURT:	Thank you. Are you in your sober senses Sir?
ACCUSED:	Yes.
COURT:	Are you pleading guilty out of your own accord, there is no one who influenced you?

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ACCUSED:	Yes your worship. It is out of my free will that I am pleading guilty.
COURT:	Thank you Sir. On the 29th of July 2021 were you at Spar?
ACCUSED:	That is correct.
COURT:	It is alleged you stole 6 chocolates at the value of R72.45. Do you know that?
ACCUSED:	That is correct.
CPURT:	The chocolates belong to Spar?
ACCUSED:	Yes.
COURT:	You knew that your actions were wrongful on the time of committing that offence?
ACCUSED:	Yes.
COURT:	Did you know that this action which, the offence which you have committed is punishable by law?
ACCUSED:	Yes I knew your worship.

After this response, the court proceeded to pass a judgment in which it convicted the accused.

[4]

In S v Nyanga [1] , Moosa J observed,

"Section 112(1)(b) questioning has a twofold purpose: firstly, to establish the factual basis for the plea of guilty and, secondly, to establish the legal basis for such plea. In the first phase of the enquiry, the admissions made may not be added to by other means such as a process of inferential reasoning (S v Nkosi 1986 (2) SA 261 (T) at 263H–I; S v Mathe 1981 (3) SA 664 (NC) at 669E–G; S v Jacobs (supra at 1117B)). The second phase of the enquiry amounts essentially to a conclusion of law based on the admissions. From the admissions the court must conclude whether the legal requirements for the commission of the offence have been met. They are the

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questions of unlawfulness, actus reus and mens rea. These are conclusions of law. If the court is satisfied that the admissions adequately cover all these elements of the offence, the court is entitled to convict the accused on the charge to which he pleaded guilty. (See S v Lebokeng en 'n ander 1978 (2) SA 674 (O) at 675G–H; S v Hendricks (supra at 187b–e); S v De Klerk 1992 (1) SACR 181 (W) at 183a b; S v Diniso 1999 (1) SACR 532 (C) at 533g–h.)"

[5]

Questions that amount to a mere regurgitation of what appears in the charge sheet are insufficient as they do not give a factual matrix in support of a guilty plea. [2] Admissions to legal statements by an unrepresented accused are of no value. The judicial officer should ask questions that invite the accused to give facts upon which he/she can make legal conclusions therefrom. A good example is a case where an accused faces a charge of failure to pay maintenance as ordered by court. It adds no value to ask the accused if he admits that he had no right to disobey a court order. [3] As Comrie J observed, asking such a question amounted to asking the accused to pass judgment on himself. [4] That is the very thing which s 112(1)(b) is designed to...