S v Mugwedi

• Jurisdiction: South Africa
• Judge: Le Roux CJ and Van Der Spuy AJ
• Judgment Date: 13 July 1987
• Citation: 1988 (2) SA 814 (V)
• Hearing Date: 13 July 1987
• Court: Venda Supreme Court

Le Roux CJ:

This matter comes before me on automatic review in terms of J s 302 of the Criminal Procedure Act 51 of 1977. The accused, a

Le Roux CJ

A 21-year-old male person, was charged with and convicted of housebreaking with intent to steal and theft of a number of articles of clothing and was sentenced to four months' imprisonment which was wholly suspended for three years on certain conditions. The accused, who was unrepresented during his trial, pleaded guilty to the charge but, after questioning in terms of s 112(1)(b) of the Act, the plea was, correctly, B in my view, altered to one of not guilty as envisaged by s 113. The matter was postponed to a later date for hearing and, when it came before court again for trial, the magistrate who had heard the plea and conducted the interrogation was not available, and the trial then proceeded before another magistrate pursuant to the provisions of s 118.

In submitting the record for review, the trial magistrate has C requested this Court's guidance on a matter of procedure and has also raised a query whether the procedure followed at the trial was regular and proper in all respects having regard to the provisions of s 118 of Act 51 of 1977 and certain decisions of the Supreme Court on the application of those provisions. I will deal with the last-mentioned point first.

D Sections 118 of the Act provides that, where a presiding officer

'before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet...'

then the trial may continue before any other presiding officer of the same court. The trial magistrate raises the question whether the E provisions of s 118 would equally apply to a case where an accused person pleaded guilty but his plea was altered to not guilty in terms of s 113. He refers me to three cases in the Supreme Courts of the Republic of South Africa where conflicting views were expressed on this question and requests a ruling for Venda. In S v Motswadira 1979 (2) SA 1175 (NC), Van den Heever J (with whom Van Rhyn AJP concurred) held that s F 118 did not cover a case of this nature, that there was no reason why an 'extensive interpretation' should be given to the section, and that in such a case the trial had perforce to proceed before the same magistrate who took the plea.

This view was, however, not followed in two subsequent decisions, G namely S v Sibiya...