S v Nyanga

• Jurisdiction: South Africa
• Citation: 2004 (1) SACR 198 (C)

S v Nyanga
2004 (1) SACR 198 (C)

2004 (1) SACR p198

Citation	2004 (1) SACR 198 (C)
Case No	Review Reference No 953/2003
Court	Cape Provincial Division
Judge	Moosa J and N C Erasmus J
Heard	August 1, 2003
Judgment	August 1, 2003

Flynote : Sleutelwoorde D

Plea — Plea of E guilty — Conviction on lesser charge after plea changed to one of not guilty — Nothing to prevent trial court from convicting accused on basis of admissions made during proceedings in terms of s 112(1) (b) of Criminal Procedure Act 51 of 1977, without further evidence being tendered, on lesser charge which is competent verdict to charge in respect of which court recorded plea of not guilty. F

Plea — Plea of guilty — Conviction on lesser charge after plea changed to one of not guilty — Accused unrepresented — Accused suffering no prejudice by not having been informed that he could be convicted of another, competent, charge.

Evidence — Adequacy of G proof — Admissions made during questioning in terms of s 112(1) (b) of Criminal Procedure Act 51 of 1977 — Court can draw inference from admissions made during proceedings in terms of s 112(1) (b) that accused acted with common purpose, where admitted facts justify such inference being drawn.

Headnote : Kopnota

There is nothing to prevent a trial court from convicting the H accused on the basis of admissions made during proceedings in terms of s 112(1) (b) of the Criminal Procedure Act 51 of 1977, without further evidence being tendered, on a lesser charge which is a competent verdict to the charge in respect of which the court has recorded a plea of not guilty in terms of s 113(1). (Paragraph [9] at 202 e - f.)

Where the accused, who was unrepresented, had pleaded guilty to a I charge of robbery, but the court had changed the plea to not guilty after questioning the accused, the accused suffered no prejudice by not having been informed that he could be convicted of another, competent, charge. Even if he had been informed that he could be convicted of that charge, it would have been unlikely that he would have conducted his case differently. (Paragraph [10] at 203 c - d.) J

2004 (1) SACR p199

A court can draw an inference from admissions made during proceedings A in terms of s 112(1) (b) that an accused acted with common purpose, where the admitted facts justify such inference being drawn. (Paragraph [11] at 203 d - 204 a.)

Annotations:

Cases cited

Reported cases

Mkhize v The State and Another; Nene and B Others v The State and Another 1981 (3) SA 585 (N): referred to

R v Blom 1939 AD 188: dictum at 202 - 3 applied

S v De Klerk 1992 (1) SACR 181 (W): referred to

S v Diniso 1999 (1) SACR 532 (C): referred to

S v Goitsemang 1997 (1) SACR 99 (O): dictum at 102 h applied

S v Gwenya 1995 (2) SACR 522 (E): C referred to

S v Hendricks 1995 (2) SACR 177 (A): applied

S v Hlokulu 1988 (1) SA 174 (C): referred to

S v Jacobs 1978 (1) SA 1176 (C): referred to

S v Lebokeng en 'n Ander 1978 (2) SA 674 (O): referred to

S v Mathe 1981 (3) SA 664 (NC): applied

S v Mkhize 1978 (1) SA 264 (N): D referred to

S v Molauzi 1984 (4) SA 738 (T): compared

S v Mwali 1992 (2) SACR 281 (A): compared

S v Ncube; S v Mphateng en 'n Ander 1981 (3) SA 511 (T): applied

S v Ngubane 1985 (3) SA 677 (A): applied

S v Nkosi 1986 (2) SA 261 (T): referred to

S v Nyambe 1978 (1) SA 311 (NC): E referred to

S v Phundula; S v Mazibuko; S v Niewoudt 1978 (4) SA 855 (T): dictum at 861C - F applied

S v Safatsa and Others 1988 (1) SA 868 (A): referred to

S v Seleke en 'n Ander 1980 (3) SA 745 (A): referred to

S v Sethoga and Others 1990 (1) SA 270 (A): referred to

S v Talie 1979 (2) SA 1003 (C): F compared.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 112(1) (b) and 113: see Juta's Statutes of South Africa 2002 vol 1 at 1-345.

Case Information

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

Judgment

Moosa J:

Introduction

[1] The accused was charged in the district court of Wynberg with one count of robbery. He pleaded guilty. He was not legally represented. He H was questioned by the magistrate in terms of s 112(1) (b) of the Criminal Procedure Act 51 of 1977 (the Act). The magistrate was not satisfied that the accused admitted all the allegations of robbery in the charge-sheet. He recorded a plea of not guilty in terms of s 113 of the Act and asked the State to proceed with the prosecution. The prosecutor sought a postponement. He informed the court that the I complainant had returned overseas and he was unable to lead any evidence. The application was refused and the State closed its case. The accused elected not to testify or call any witnesses and closed his case. The State applied for a conviction on the lesser charge of theft. The court, on the basis of the admissions made at the s 112(1) (b) enquiry, convicted the J

2004 (1) SACR p200

Moosa J

accused on a competent verdict of theft and sentenced him to six A months' imprisonment.

[2] The senior control magistrate was not satisfied that the conviction was in accordance with justice and submitted the matter for special review to this Division in terms of s 304(4) of the Act. She was not the presiding officer. The grounds of review were formulated as B follows:

'It is of concern to me that at no stage was it admitted or proved that the handbag was the property or in the lawful possession of Daniela Accettura or that no right or permission had been given for the removal of the handbag. It is further of concern to me that the accused's participation consisted only of running away with the main C perpetrator and the admission (in response to a somewhat leading question that they would have shared in the proceeds of the spoils (''buit''). There is no indication whether this was ever discussed with the main perpetrator or whether this was just a hope on the part of the accused before court. The matter was discussed with the presiding officer, who is adamant that the conviction is in accordance with justice. It is my respectful submission that the inferences drawn D by the magistrate in this matter do not support a conviction and I humbly request that the conviction and sentence be set aside.'

[3] The presiding officer was requested to furnish his reasons for the conviction. In his response he said:

'The court was satisfied that accused admitted to all the E allegations of theft and that theft was a competent verdict and the only conclusion the court could come to was to a conviction of theft.'

[4] In his plea explanation the accused admitted that he was present on the date and at the place alleged in the charge-sheet. He explained that he and a friend had walked past the complainant. The F friend took the handbag that had been laying next to her. Both of them ran away. The accused was arrested but the friend got away with the handbag. In an answer to a question the accused said that he and his friend would have shared in the proceeds of the spoils. He accepted that the bag contained R4 000. He also admitted that what he did was wrong.

The issue G

[5] The crux of the issue is whether or not the presiding officer was correct in convicting the accused on a charge of theft which, in terms of s 260, is a competent...