South Africa: High Courts - Gauteng

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IN THE HIGH COURT OF SOUTH AFRICA ITRANSVAAL PROVINCIAL DIVISION\

DATE: 10 September 2007

MAGISTRATE WITBANK

Case No: C2230/07 Magistrate's serial no: 91/2007 High Court Ref No: 1693

THE STATE VS GLONDI MAKWAKWA

REVIEW JUDGMENT

PRELLER J:

The accused pleaded guilty to a charge of housebreaking with the intent to commit a crime unknown to the state.

There was no questioning of the accused in terms of section 112 of the Criminal Procedure Act and the accused was convicted and sentenced to 6

months' imprisonment.

2

Apart from the clear failure to comply with the provisions of the section

is it impossible to find an appropriate sentence in view of the total absence of

any indication of the circumstances under which the offence was committed.

The questioning should at least reveal how and under what circumstances

access was gained to the house and what he did there. The prosecutor

should also be asked to put the complainant's version on record, if it does not

accord with what the accused says. If necessary some evidence from the

complainant should be tendered despite the plea of guilty.

In the result the following order is made:

1. The conviction and sentence are set aside.

2. In terms of section 312(1) the case is referred back to the

Magistrate for proper compliance with the provisions of

section 112 or, if applicable, for steps in terms of section 113.

F.G PRELLER

JUDGE OF THE HIGH COURT

I AGREE

E JORDAAN

JUDGE OF THE HIGH COURT

3