S v Oliphant

• Jurisdiction: South Africa
• Citation: 2014 (2) SACR 98 (NCK)

S v Oliphant
2014 (2) SACR 98 (NCK)

2014 (2) SACR p98

Citation	2014 (2) SACR 98 (NCK)
Case No	5/2012
Court	Northern Cape Division, Kimberley
Judge	Phatsoane J and Mamosebo AJ
Heard	December, 2013
Judgment	December, 2013
Counsel	Information not supplied

Flynote : Sleutelwoorde

Plea — Plea of guilty — Alteration of to one of not guilty in terms of s 113 of Criminal Procedure Act 51 of 1977 — On review — Accused committed to regional court in terms of s 114(1)(b) for sentencing as result of his H previous convictions — Record lost and after reconstruction accused declined to confirm plea of guilty — Alteration of plea to one of not guilty grossly irregular and set aside on review

Headnote : Kopnota

The accused appeared in a magistrates' court on counts of housebreaking with I intent to steal and theft and pleaded guilty in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (CPA), and was convicted as charged. The matter was then postponed for proof of the accused's previous convictions. Due to the long list of previous convictions the presiding magistrate committed him to the regional court for sentencing in terms of s 114(1)(b) of the CPA, but he escaped from custody shortly afterwards. He was rearrested and the matter was postponed for the record to be J transcribed for the referral to the regional court. There were a number of

2014 (2) SACR p99

further postponements, as on each occasion the record was not available, A and the magistrate then decided to reconstruct the record, but during this process the accused declined to confirm the correctness of his plea of guilty. The magistrate then entered a plea of not guilty in terms of s 113(1) of the CPA and ordered that the matter proceed de novo before a different presiding officer, as he had sight of the accused's previous convictions. Realising his error, the magistrate submitted the matter on review and B requested that the proceedings after the referral to the regional court be set aside.

Held, that the intervention by the magistrate insofar as he changed the guilty plea to one of not guilty was grossly irregular and had to be set aside. The status quo ante was therefore in place. (Paragraph [19] at 105e.)

Annotations:

Cases cited

Case law

Firestone South Africa (Pty) Ltd v Gentiruco AG1977 (4) SA 298 (A): dicta at 306F – G applied C

Minister of Justice v Ntuli1997 (2) SACR 19 (CC) (1997 (3) SA 772; 1997 (6) BCLR 677): dictum in para [22] applied D

S v Duma2012 (2) SACR 585 (KZP): criticised and distinguished

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; 2000 (11) BCLR 1252; [2000] ZACC 16): compared

S v Khumalo2009 (1) SACR 503 (T): dicta at 505 – 506 applied

S v Malatji and Another1998 (2) SACR 622 (W): dicta at 624b – d applied

S v Mantsha2009 (1) SACR 414 (SCA): referred to E

S v Tilo2006 (2) SACR 266 (NC): applied

S v Van Staden2008 (2) SACR 626 (NC): referred to

S v Whitney and Another1975 (3) SA 453 (N): dictum at 453H applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 112(2), 113(1) and 114(1)(b): F see Juta's Statutes of South Africa 2012/13 vol 1 at 2-370 and 2-371.

Case Information

Review.

Order

(1)

The decision by the district magistrate, Mr Wessels, to record a plea G of not guilty and require the prosecutor to proceed with the prosecution of the accused in the district court, is hereby set aside.

(2)

The case is remitted to the regional court to deal with in terms of the provisions of s 114 of the Criminal Procedure Act 51 of 1977.

Judgment

Mamosebo AJ (Phatsoane J concurring):

[1] The accused appeared before Mr Wessels, a district court magistrate in De Aar, on two counts of housebreaking with intent to steal and theft. He pleaded guilty in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA), and was convicted as charged on 11 June 2012. This matter is before us by way of a special review. I

[2] Before the aforegoing conviction the accused and his three co-accused appeared before magistrate Morolong on 29 May 2012, who addressed them in a condescending manner in explaining their rights to legal representation. In the judgment of this court in S v Tilo2006 (2) SACR 266 (NC) J

2014 (2) SACR p100

Mamosebo AJ (Phatsoane J concurring)

A Kgomo JP placed emphasis on the importance of the role played by the judicial officer in conducting court proceedings, which includes explaining properly the constitutional rights to an accused person. Reference is made to a number of authorities in that judgment. In particular the following remarks by Cameron J in S v Malatji and Another B 1998 (2) SACR 622 (W) at 624b – d are apposite:

'Both appellants were unrepresented. After the prosecutor put the charges to them, the magistrate asked them what they pleaded. In doing so, and throughout the record, he referred to them with the familiar form of the Afrikaans personal pronoun, jy and jou. In a formal context this is not merely inappropriately familiar, but discourteous to C the accused. Such language is in any event inconsistent with the dignity and propriety which is required of a judicial officer. If judicial officers expect the dignity of their office to be recognised and respected by those appearing before them, they must conduct themselves with the reciprocal courtesy appropriate to that expectation.'

D [3] The background to the issues arising for consideration in this review appears from Mr Wessels' response to my query dated 19 February 2013, and again on 26 June 2013. On 11 June 2012 the accused and three others appeared before Mr Wessels. Charges were withdrawn against the accused's co-accused. Thereafter he pleaded guilty in terms E of s 112(2) of the CPA. He was legally represented by Mr Sobuzo of the Legal Aid Board. A guilty verdict was returned because the magistrate was satisfied that he admitted all the elements of the offence with which he was charged. The matter was thereupon remanded to 25 June 2012 for proof of the accused's previous convictions. On 9 July 2012 his previous convictions were proved. Due to the long list of the accused's F past criminal record the presiding magistrate committed him to the regional court for sentencing in terms of s 114(1)(b) of the CPA, for a possible enhanced sentence. This section deals with a committal, by a magistrate, of an accused for sentence by a regional court after a plea of guilty.

G ...