IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

					           Appeal Case No.  :  A558/13
							
			      Magistrate’s Court Case No.  :  9/1227/13				

In the matter between:

JANINA SAMUELS						Appellant

vs

THE STATE							Respondent
_________________________________________________________

JUDGMENT DELIVERED ON THURSDAY 31 MARCH 2016 
_________________________________________________________
	
DLODLO, J											
[1]	This is an appeal against the Appellant’s conviction on a charge of 	Contempt of Court and the sentence subsequently imposed by the 	Magistrate – Wynberg district on 7 June 2013 (“the trial Court”).  	The matter is before this Court after Leave to Appeal in terms of 	Section 309B of the Criminal Procedure Act 51 of 1977 (“the 	Criminal Procedure Act”) was granted by the trial Court on 2 	August 2014.    
A BRIEF FACTUAL MATRIX
[2]	It is common cause that at the time of her conviction, the Appellant 	who was then a forty-four (44) year old single mother of four (4) 	children had been living in an informal structure in the area known 	as Hangberg together with her sixteen (16) year old son.  She had 	constructed the informal dwelling herself on 12 October 2012 and 	was then employed as a contract worker who then earned 	R180.00 per day.  As we gather, the Appellant had been on the 	housing waiting list for fifteen (15) years.  This we gather from 	Exhibit A which is an extract from the housing data base.  On 31 	May 2013 the Appellant appeared before the Court on a 	charge 	of Contempt of Court as mentioned in the introductory portion of 	this judgment.  Having been advised of her rights as to legal 	representation, the Appellant made an election to act in person 	and/or to represent herself.  On that date she was released 	from custody after having been granted bail in the sum of one 	thousand rands.  The granting of bail was of course subject to 	certain usual conditions.  On that particular day the proceedings 	were adjourned 	and the case postponed until 7 June 2013.  The 	records specifically mention that the proceedings were postponed 	to the latter date for “the accused’s plea”.     		

[3]	According to the charge sheet, the charge against the Appellant 	related to her failure to comply with an interim interdict granted by 	this Court on 30 September 2010 and which was made final on 10 	November 2011.  In the charge sheet the State alleged that the 	interdict applied to the area known as Hangberg, Hout Bay in the 	magisterial district of Wynberg and the said interdict made the 	following provisions:   
	“1.	Preventing the building, extension or completion and/or fresh 	occupation of current or new informal structures (or the re-erection 	of those that have been dismantled) on or above the area 	commonly known as The Sloot;
	2.	Restraining and interdicting the unlawful occupants of erven 	33-2844, 33-1510, 33-1860 and any other person from unlawfully 	occupying or invading the vacant properties which have been 	acquired by the City of Cape Town;
	3.	Restraining and interdicting anyone from building, 	completing, extending and taking occupation of any further 	informal structures:
		(i)	Anywhere in the area known as Hangberg; and
		(ii)	On or above and under the Sloot in Hangberg.”
It needs to be mentioned that the Second Respondent cited in both the interim and Final Orders granted by this Court on 30 September 2010 and 10 November 2011 respectively was described as follows:
	“The unlawful occupants of erven 33-2844, 33-1510, 33-1860 and 	State land west of Hout Bay unmeasured and unregistered 	commonly referred to as 33-0000/5 Hout Bay whose identities are 	not known to the Applicants and those intending to occupy erven 	33-8176, 33-8474, 33-2844, 33-1510, 33-1860 and State land west 	of Hout Bay unmeasured and unregistered commonly referred to 	as 33-0000/5 Houtbay.”

[4]	The State alleged in the charge sheet that on 18 January 2013, the 	Deputy Sheriff had served a notice on the Appellant notifying her 	of the existence of the High Court Orders and also informing her 	that she was in contravention of the Order and giving her seven (7) 	days “to vacate the informal structure and demolish it.”  The State 	alleged that the Appellant failed to comply with the aforementioned 	notice.	

[5]	According to the record of proceedings on 7 June 2013 the 	Appellant appeared before the Court as scheduled. She 	confirmed her earlier election, namely, to represent herself.  The 	Prosecution put a charge to her and when asked what her plea 	was, she pleaded guilty to the charge preferred against her by the 	State.  The record of proceedings, however, does make it appear 	that before the charge was put to the Appellant, the charge sheet 	was amended in terms of Section 86 of the Criminal Procedure 	Act to include, in reference to the area known as the Sloot, the 	words “onder en and/or under.”

[6]	Upon pleading guilty the trial Court thereafter proceeded to 	question the Appellant in terms of Section 112(1) (b) of the 	Criminal Procedure Act.  Importantly, in answer to the question 	“waar presies is u woning?” (by the trial Court) the Appellant 	answered “dis langs die Sloot, maar aan die onderkant van die 	sloot.  Dis nie op of bo die Sloot nie.”  Strangely the trial Court 	then questioned the Appellant as to whether she received a notice 	from the Sheriff on 18 January 2013 which stated that she must 	“afbreek en ontruim.”  The response by the Appellant to this 	question was somewhat curious.  She answered “ek het verstaan 	dis `n hooggeregshof bevel en dat ek moes geuit het, maar ek het 	nêrens gehad om heen te gaan nie.  Daarom het ek nie gegaan 	nie.”  In answer to the question as to whether the Appellant knew 	that she was committing an offence and that she could be 	punished for doing so, the Appellant answered “Ja.”

[7]	Even though the trial court did not expressly say it accepted and  	was satisfied that the Appellant correctly pleaded guilty to the 	charge preferred against her, it does appear to have accepted the 	Appellant’s plea of guilty.  One is obliged to deduce so because 	the trial court thereafter permitted the prosecution (ostensibly in 	terms of Section 112 (3) of the Criminal Procedure Act) to present 	evidence on the charge.  The State then led the evidence of one 	Jan Gerber, an advocate employed by the Western Cape 	Department of Community Safety.  Mr Gerber whose evidence 	was subsequently reconstructed, testified inter-alia that he was 	overseeing the investigation and prosecution of persons who had 	breached the High Court Order.  At the conclusion of his evidence, 	Mr Gerber proposed that the Appellant be given a suspended 	sentence on condition that she breaks down her unlawful structure 	and that should she fail to do so, the suspended sentence should 	then be put into operation.  Strangely, the trial court obliged and 	proceeded to sentence the Appellant to undergo imprisonment for 	the period of three (3) months the whole of which was suspended 	on two conditions.  The first condition was that the Appellant not be 	found guilty of Contempt of Court within the three year period of 	suspension.  The second condition was that the Appellant 	“verwyder and ontruim” her structure on or before 20 June 2013. 

[8]	On 22 July 2013 the Appellant (by that stage represented by the 	Legal Resources Centre) filed a simultaneous application for 	condonation and an application for Leave to Appeal in terms of 	Section 309B of the Criminal Procedure Act.  The Appellant 	advanced a number of grounds of appeal in the application for 	Leave to Appeal.  These included but were not limited to the 	following as paraphrased by Mr Magardie:
	“(a)	The court a quo had erred in finding as a matter of fact in 			finding that the Appellant was guilty of Contempt of Court;    
	(b)	The court a quo had erred by permitting the amendment of 		the charge sheet which prejudiced the Appellant in her 			defence contrary to the provisions of Section 86 of the Act;
	(c)	The court a quo had erred in that having elicited the answers 		given by the Appellant pursuant to the questioning in terms 		of Section 112 (1) (b) of the Act, the Court ought to have 			been in doubt as to the Appellant’s guilt.  In these 				circumstances the Court ought to have invoked the 				provisions of Section 113 of the Act, recorded a plea of not 		guilty and required the prosecutor to proceed with the 			prosecution;
	(d)	The condition imposed by the court a quo as part of the 			suspended sentence, requiring the Appellant to “verwyder en 		ontruim” her home, was not legally competent.  The condition 		amounted in form and effect to an Order evicting the 			Appellant from her home, in circumstances where there had 		been no enquiry as the relevant circumstances which 			Section 26(3) of the Constitution and Section 4(7) of the 			Prevention of Illegal Eviction from and Unlawful Occupation 		of Land Act 19 of 1998 (“PIE”) requires to be considered 			before an Order is granted evicting a person from their 			home.”
APPLICABILITY OF CERTAIN PROVISIONS OF THE CRIMINAL PROCEDURE ACT AND THE RELEVANT LEGAL PRINCIPLES
[9]	In order to address the concerns that an amendment to the 	charge sheet prejudiced the Appellant, it is necessary to set out 	infra 	the provisions of Section 86 (1) of the Criminal Procedure 	Act.  It reads as follows:
	“86(1) Where a charge is defective for the want of any essential 	averment therein, or where there appears to be any variance 	between any averment in a charge and the evidence adduced in 	proof of such averment, or where it appears that words or 	particulars that ought to have been inserted in the charge have 	been omitted therefrom, or where any words or particulars that 	ought to have been omitted from the charge have been inserted 	therein, or where there is any other error in the charge, the court 	may, at any time	before judgment, if it considers that the making of 	the relevant amendment will not prejudice the accused in his 	defence, order 	that the charge, whether it discloses an offence 	or not, be 	amended, so far as it is necessary, both in that part 	thereof where the defect, variance, omission, insertion or error 	occurs and in any other part thereof which it may become 	necessary to amend.”  	

[10]	It is important to mention that the amendment can be effected “at 	any time before judgment.”  However, the probability that the 	accused person will be prejudiced is, of course, greater as the trial 	proceeds to its end because the defence would not have borne the 	amendment in mind.  In the interest of completeness one perhaps 	needs to mention that in an extensive and complex trial involving 	several charges the central and decisive particulars have far-	reaching and important consequences and accordingly the Court 	will be slow to allow an amendment at the late stage clearly 	because such an amendment can prejudice the accused person.  	See for instance S v Heller 1971 (2) SA 29 (A); S v Mpambanso 	2013 (2) SACR 186 (ECB).  Fortunately, in casu this has no 	application.

[11]	The test for prejudice is whether the accused will, (as far as the 	presentation of his case is concerned) be in a weaker position than 	that in which he or she would have been had the charge been in 	the amended form when the plea was tendered.  This does not talk 	to being deprived of a handy technical point.  There will be 	prejudice if the accused person could reasonably have presented 	or sought other evidence or would have cross-examined differently 	had the charge sheet read differently and an adjournment or other 	indulgence cannot remove the prejudice.  In the words of Innes CJ 	in R v Herschel 1920 AD 575 at 580 “the cases where such 	prejudice cannot be avoided by a suitable adjournment must be 	few indeed.”  In the instant case, in my view, prejudice does not 	even arise.  There is no defence put forth by the Appellant on 	which the latter would conceivably be prejudiced by the 	amendment.  Moreover, this I prefer to call, cosmetic amendment 	to the charge sheet, hardly raised issues of the moment.  The 	Appellant had not even pleaded when this amendment was made 	to the charge sheet.  To say that it prejudiced her in her defence is 	untenable.  

[12]	In any event after the amendment had been effected the charge 	was then put to the Appellant and she proceeded to plead guilty 	thereto.  Where is prejudice?  The latter is of course a rhetoric 	question.  There is none at all.  Prejudice is prejudice to an 	accused person if the amendment sought and granted affects the 	merits of the defence put forth by the accused person.  Indeed 	Section 86 (1) places no onus on the prosecution to establish the 	absence of prejudice before the Court may for instance, order 	and/or sanction the changes in the indictment to be amended.  	See S v Maqubela and Another 2014 (1) SACR 378 (WCC).  	Ordinarily where the Court intends amending the charge sheet, it 	always must afford the accused person (legally represented or 	acting in person) an opportunity to adduce evidence or make 	submissions in order to show prejudice and postpone the 	proceedings.  I need to conclude this aspect by stating that the 	Court can amend a charge sheet mero motu or on the application 	of either the State or the accused.  I hasten to add though that in 	each case the Court should inform the accused that it is 	considering an amendment in order to afford him an opportunity to 	indicate prejudice.  See S v Gelderbloem 1962 (3) SA 631 (C).

[13]	There is merit in the contention that the Court ought to have 	resorted to invoking the provisions of Section 113 of the Criminal 	Procedure Act.  The answer given to the question by the Court 	“waar presies is u woning?”  was as mentioned supra “dis langs 	die Sloot, maar aan die onderkant van die Sloot – dis nie op of bo 	die Sloot nie.”  It is rather unfortunate that the trial court stopped 	the Section 112(1) (b) questioning halfway.  But from the answer 	given it became abundantly clear that the Appellant may very well 	not be resident in the area covered by the widely worded interdict 	order alleged to have been breached.

[14]	Clearly, I would be surprised to gather that the trial magistrate 	became satisfied that the Appellant correctly pleaded guilty to the 	charge preferred against her.  Her answer to the question of 	whether she received a notice from the Sheriff was in fact more 	telling that she never understood nor intended to commit Contempt 	of Court.  I repeat the answer infra to facilitate this discussion:
	“Ek het verstaan dis `n hooggeregshof bevel en dat ek moesge uit 	het, maar ek het nêrens gehad om heen te gaan nie.  Daarom het 	ek nie gegaan nie.”  	

[15]	If the last answer can be described as not having amounted to a 	defence then I would never comprehend how otherwise an 	undefended, uneducated and unsophisticated accused person 	must 	communicate with the Court in disclosing her defence on a 	charge of Contempt of Court.  There was undoubtedly inadequate 	questioning by the trial court.  But what was solicited by the totally 	inadequate questioning was enough to show that this accused 	person actually means to plead not guilty to the charge preferred 	against her.  The provisions of Section 113 were put by the 	Legislature in the Criminal Procedure Act in their clear wisdom to 	cater for instances such as the present one.

[16]	Section 113 of the Criminal Procedure Act provides as follows:
	“(1) If the court at any stage of the proceedings under section 	112(1) (a) or (b) or 112(2) and before sentence is passed is in 	doubt whether the accused is in law guilty of the offence to which 	he or she has pleaded guilty or if it is alleged or appears to the 	court that the accused does not admit an allegation in the charge 	or that the accused has incorrectly admitted any such allegation or 	that the accused has a valid defence to the charge or if the court is 	of the opinion for any other reason that the accused’s plea of guilty 	should not stand, the court shall record a plea of not guilty and 	require the prosecutor to proceed with the prosecution:  Provided 	that any allegation, other than an allegation referred to above, 	admitted by the accused up to the stage at which the court records 	a plea of not guilty, shall stand as proof in any court of such 	allegation.  
	(2) If the court records a plea of not guilty under subsection (1) 	before any evidence has been led, the prosecution shall proceed 	on the original charge laid against the accused, unless the 	prosecutor explicitly indicates otherwise.” 

[17]	It must be mentioned that criterion for a change of plea envisaged 	in Section 113 quoted above is reasonable doubt.  If the Court has 	a reasonable doubt whether the accused person admits, admitted 	or still admits an allegation in the charge sheet or whether such 	admission was correctly made regarding either guilt or the possible 	existence of a defence, a plea of not guilty must be noted.  As held 	in Attorney-General, Transvaal v Botha 1993 (2) SACR 587 (A), 	the doubt can arise from replies during the initial questioning or 	during argument, from information regarding sentence or from 	questions there or from other material which is furnished.  The 	section indeed applies to the entire process from the initial 	questioning until just before the sentence is imposed on the 	already found guilty accused person.  We now live in a 	Constitutional era.  The Constitution of the Republic of South 	Africa ensures in Section 35 (3) that the accused’s right to a fair 	trial is borne in mind particularly the accused person’s right to 	the presumption of innocence, the right to remain silent and the 	right to be protected against self-incrimination.

[18]	When the presiding officer engages in the questioning of an 	accused person who has tendered a plea of guilty to the charge, 	he in the first place seeks to confirm the guilty plea.  In fact the 	presiding officer under Section 112 (1) and (2) acts as an inquisitor 	and not as umpire, the purpose being to make a determination 	whether a trial is at all necessary.  The accused’s guilt must 	appear prominently from his or her answers to the questioning.  	Thus the presiding officer determines whether the accused 	person’s guilt appears from his or her answers to the questioning.  	I fully associate myself with the sentiments expressed in 	Hiemstra’s Criminal Procedure as updated by Albert Kruger to 	the effect that the inquisitorial and purely preliminary nature of 	Section 112 also manifests itself in the fact that it is not concerned 	with evidence but with unattested statements and that the process 	is not a trial but an investigation.  Indeed before an admission by 	an accused person during the Section 112 (1) (b) proceedings can 	stand as proof under Section 113 (1) the content and ambit of the 	admission must be clear.  The State loses nothing when the plea 	of guilty is altered to the one of not guilty in terms of Section 113 of 	the Criminal Procedure Act.  I say so because all admissions 	which have not been withdrawn remain proof of the particular 	allegation.

[19]	Contempt of Court has essential elements which must be proved, 	just like any other crime.  Contempt of Court consists in unlawfully 	and intentionally violating the dignity, repute or authority of a 	judicial body.  See Milton, South African Criminal Law and 	Procedure, Volume ll, 3rd edition 1996 page 164.  In S v Beyers 	1968 (3) SA 70 (A) it was correctly held that a person who 	unlawfully and intentionally disobeys a Court Order commits an 	offence.  The State has an obligation (as in any other criminal 	prosecution) to prove beyond a reasonable doubt that the offence 	was committed intentionally and with the necessary mens rea.  	The Appellant faced a particular species of Contempt of Court in 	the instant matter.  This is Contempt of Court ad factum 	praestandum – non-compliance with a Court Order requiring a 	respondent to do or not do something.

[20]	The Supreme Court of Appeal has stated that the test for when 	disobedience of a civil order constitutes Contempt is whether the 	breach was committed “deliberately and mala fide”.  See Frankel 	Max Pollak Vinderine Inc. v Menell Jack Hyman Rosenberg & 	Co Inc 1996 (3) SA 355 (A) at 367 H-I; Jayiya v Member of the 	Executive Council for Welfare, Eastern Cape 2004 (2) SA 602 	(SCA) paras 18 and 19.  Mr Magardie referred us to Fakie NO v 	CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).  The latter case 	is truly a leading case on the correct characterisation of Contempt 	of Court in the form of disobedience of a civil Court Order.  	Cameron JA (as he then was) writing for the full bench of the 	Supreme Court 	of Appeal stated the following elucidating 	formulation:
	“Deliberate disregard is not enough, since the non-complier may 	genuinely, albeit mistakenly, believe him-or herself entitled to act in 	the way claimed to constitute the contempt.  In such a case good 	faith avoids the infraction.  Even a refusal to comply that is 	objectively unreasonable may be bona fide (though 	unreasonableness could evidence lack of good faith).
	These requirements – that the refusal to obey should be both wilful 	and mala fide, and that unreasonable non-compliance, provided it 	is bona fide, does not constitute contempt – accord with the 	broader definition of the crime, of which non-compliance with civil 	orders is a manifestation.  They show that the offence is committed 	not by mere disregard of a court order, but by the deliberate and 	intentional violation of the court’s dignity, repute or authority that 	this evinces.  Honest belief that non-compliance is justified or 	proper is incompatible with that intent.”

[21]	Perhaps it is of paramount importance to mention as well that the 	purpose of questioning in terms of Section 112 of the Criminal 	Procedure Act is to protect an accused person, who, as in the 	instant case, is not only undefended but is clearly uneducated and 	exhibits no sophistication, from the adverse consequences of an 	ill-considered plea of guilty.  At the risk of repeating what I have 	stated already earlier in this judgment I reiterate that the 	questioning and answers must cover all the essential elements of 	the offence which the State in the absence of a plea of guilty would 	be required to prove.  See in this regard S v Doud 1978 (2) SA 	403 (O).  Botha JA in S v Naidoo 1989 (2) SA 114 (A) at 121F 	stated the following: 	 
	“It is well settled that the section was designed to protect an 	accused from the consequences of an unjustified plea of guilty, 	and that in conformity with the object of the Legislature our courts 	have correctly applied the section with care and circumspection, 	and on the basis that where an accused’s responses to the 	questioning suggest a possible defence or leave room for a 	reasonable explanation other than the accused’s guilt, a plea of 	not guilty should be entered and the matter clarified by evidence.” 
	It remains abundantly clear from the answers given by the 	Appellant pursuant to the trial court’s questioning of the Appellant 	in terms of Section 112 (1) (b) of the Criminal Procedure Act that 	the Appellant’s non-compliance with the Order was not deliberate, 	mala fide or unreasonable.

[22]	In the first place the Appellant believed that she was not in breach 	of the Court Order.  This is evident from her statement that her 	home was not on or above the Sloot.  Importantly, the Appellant 	told the magistrate that she did not demolish and vacate her home 	as required by the Order because she had nowhere else to go.  	The fact is that there was no evidence placed before the trial Court 	to gainsay any of these statements, in particular that the Appellant 	would be rendered homeless if she were forced to comply with the 	interdict and the notice served on her by the Sheriff.

[23]	I fully agree with Mr Magardie that the trial Court ought to have 	been in doubt from the questioning of the Appellant as to whether 	the latter had the necessary intention to deliberately and mala fide 	to disobey the High Court Order.  In effect the Appellant stated that 	she did not comply with the interdict because she had nowhere 	else to go if she had to demolish and vacate her informal structure.  	I mean this was to her for all intents and purposes a home and the 	only home.

[24]	In conclusion, I return to her answer on the questions put to her by 	the trial Court.  The cumulative effect of her statements that her 	home was not on or above the Sloot, that she had nowhere else to 	go (if required to “verwyder” her home) and the fact that the 	Appellant was not legally represented, ought to have raised doubt 	about whether she was admitting all the elements of the offence, of 	a degree sufficient for the trial Court to invoke the provisions of 	Section 113 of the Act.  I hold that failure by the trial Court to act in 	terms of Section 113 of the Criminal Procedure Act in the instant 	matter and in these circumstances constituted a serious 	misdirection which indeed resulted in a failure of justice.  The 	misdirection which is so serious that it results in the failure of 	justice is of course a material misdirection having the effect of 	vitiating the proceedings before the trial Court.

[25]	Indeed the second condition of the suspended sentence imposed 	by the trial Court requiring the Appellant to remove and vacate her 	informal structure by 20 June 2014 failing which the three (3) 	month suspended custodial sentence would become operative, is 	inconsistent with Section 26 (3) of the Constitution and is thus both 	incompetent and invalid.  Section 26 (3) of the Constitution 	provides that no-one may be evicted from their home or have their 	home demolished without an Order of Court made after 	considering all relevant circumstances.  When one considers the 	sentence imposed on the Appellant in the instant matter, it 	becomes plain that in effect the sentence compels her to choose 	between homelessness and imprisonment.  One would have 	thought that the Magistrate would by now be alive at the decision 	by this Court in S v Koko 2006 (1) SACR 15 (C) where the 	following guiding formulation was given:
	“Although the second condition of suspension was, strictly 	speaking, not an order for the eviction of the accused from the 	premises, it obliged him to vacate the same by 30 June 2004, 	failing which he, as happened, could be arrested and brought 	before a competent court in terms of the provisions of s 297 (9) of 	the Criminal Procedure Act, for the purpose of having the 	suspended portion of the sentence put into operation or further 	suspended in the exercise of the court’s discretion (see S v Titus 	1996 (1) SACR 540 (C) at 543 h – i).  As the obvious purpose of 	the imposition of the second condition of suspension was to 	indirectly achieve the same result as an order of ejectment, it, for 	practical purposes, in my view, should be equated therewith and, 	in any event, would ensure that the full measure of the protection 	afforded by s 26 (3) of the Constitution is accorded the accused.”
	“The magistrate by having imposed the second condition of 	suspension, without having conducted an enquiry into and 		considered all the relevant circumstances, in my view, failed to act 	in accordance with the law.  I, accordingly, incline to the view that 	the second condition of suspension was invalidly imposed.” 

[26]	In conclusion it must be pointed out that a Court which grants an 	Order the effect of which is to evict a person from their home is 	obligated under Section 26 (3) of the Constitution to take all 	relevant circumstances into account before granting such an 	Order.  See, inter alia Port Elizabeth Municipality v Various 	Occupiers 2005 (1) SA 217 (CC).  Eviction Orders are not 	ordinarily made by Criminal Courts.  It is not necessary for 	purposes of this judgment to enumerate the relevant 	circumstances envisaged in Section 26 (3) of the Constitution 	which must be taken into consideration before such an Order can 	be competently made.  It suffices to mention that the condition 	requiring the Appellant to “verwyder en ontruim” her home was 	imposed by the 	trial Court without any judicial enquiry at all into 	the personal circumstances of the Appellant, the circumstances 	under which she occupied the land in question and built thereon 	her informal structure, her knowledge of the interdict at the time it 	was granted, the rights and needs of her children, the 	consequences of eviction or the availability of suitable alternative 	accommodation for the Appellant and her children.  Counsel 	representing the Respondent in this appeal wisely conceded k, 	inter 	alia as follows:    
	“Die klagstaat is ook so swak geformuleer dat dit nie duidelik is wat 	presies die misdryf was nie.  Was dit omdat die appellant op of bo 	of onder die sloot `n struktuur opgerig het?  
	Die getuie Gerber het verklaar dat die hofbevel gemik was op 	strukture wat “op of bo” die sloot opgerig was.
	Dit blyk verder nie uit die oorkonde wat die bewoording was van 	die kennisgewing wat die balju op die appellant beteken het nie.
	Dit is dus glad nie duidelik dat die appellant `n misdryf gepleeg het 	of nie en indien wel, sy die nodige mens rea gehad het nie.
	Dit word aan die hand gedoen dat, gegewe die lang tydsverloop, 

	die skuldigbevinding en vonnis bloot tersyde gestel word.”

ORDER

[27]	On the strength of the above reasoning I make the following Order:

	(a)	The Appeal against both conviction and sentence is upheld.
	(b)	The conviction and the subsequently imposed sentence are 		set aside.
	(c)	The matter is remitted to the trial Court in terms of Section 		312 of the Criminal Procedure Act; the trial Magistrate is 			directed to ensure that the provisions of Section 113 of the 		Criminal Procedure Act is complied with.  

_______________
DLODLO, J

I agree		

									_____________                                                  									NUKU, AJ

APPEARANCES:

For Appellant			:		Adv S Magardie
							
Instructed by			:		Legal Resources Centre
							3rd Floor Greenmarket Place
							54 Shortmarket Street
							CAPE TOWN

For Respondent			:		Adv J H Theron 
							
Instructed by 			:		Director of Public Prosecutions							Private Bag 9003                 								CAPE TOWN

	REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE DIVISION, CAPE TOWN)

					           Appeal Case No.  :  A558/13
							
			      	Magistrate’s Court Case No.  :  9/1227/13		

In the matter between:

JANINA SAMUELS						Appellant

vs

THE STATE							Respondent
_________________________________________________________

PRESIDING JUDGE	:		D V DLODLO

For Appellant			:		Adv S Magardie
							
Instructed by			:		Legal Resources Centre
						3rd Floor Greenmarket Place
						54 Shortmarket Street
						CAPE TOWN

For Respondent		:		Adv J H Theron 
							
Instructed by 		:		Director of Public Prosecutions								Private Bag 9003                 								CAPE TOWN
Date of Hearing		:		11 March 2016	
Date of Judgment		:		31 March 2016