S v Ndlovu

• Jurisdiction: South Africa
• Judge: Cameron J and Navsa J
• Judgment Date: 15 January 1998
• Citation: 1998 (1) SACR 599 (W)
• Hearing Date: 15 January 1998
• Court: Witwatersrand Local Division

Cameron J:

This is a review. The accused was charged in the Randburg Magistrate's Court with shoplifting a 'waterproof' valued at R20 from Woolworths Randburg. She was convicted on her own plea of guilty in terms of s B 112 of the Criminal Procedure Act 51 of 1977. She was a first offender, and was given a wholly suspended sentence of R300 or three months' imprisonment.

There is an error in the suspension conditions as expressed in the J4. The magistrate requests that this be corrected and this will be done.

C The substantial question the magistrate raises is whether the conviction under s 112 was in order. The accused tendered her plea of guilty. She then admitted the incident, its date and place, and that the 'waterproof' in question was the property of Woolworths Randburg. The proceedings that followed are then recorded as follows:

'Q:

Did you know that your actions were wrong?

A.

D A:Yes.

Q:

Do you know that you acted unlawfully by doing so?

A:

Yes.

Q:

Did you have any right or permission to remove that waterproof?

A:

Yes.

The prosecutor accepts the plea as alleged in the charge-sheet.

E JUDGMENT:

GUILTY AS CHARGED.'

In sending up the review, the magistrate comments as follows:

F 'A plea of not guilty could have been entered in terms of s 113 of Act 51/1977 because of the answer "YES" to whether the accused had any right or permission to take the property.'

This is correct. It also seems clear, however, that the accused intended her answer to the last question to be 'No'. G Had the magistrate asked her what she meant by 'Yes', she would have amended her answer to 'No'. This emerges with incontestable clarity from the record of the proceedings. The accused intended to plead guilty, and did plead guilty. She meant at no stage to put in issue any of the elements of the offence with which she was charged. This is confirmed by her plea in mitigation where she stated 'I will never commit that offence again.'

H It is evident from the record that the accused was giving rote answers to the questions put to her. She plainly thought that the appropriate answer to the final question was also 'Yes', intending to confirm that she had no 'right or permission' to remove the property.

The question is what is to be done in the circumstances. If the proceedings are set aside, and the matter remitted to I the magistrate's court, the accused will have to be re-summoned and will have to...