REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
 (NORTH GAUTENG HIGH COURT)

CASE NO: A1097/09
DATE: 08/12/2010

In the matter between:

And

JUDGMENT

MAVUNDLA J;

[1] The appellant was charged and convicted at the Volksrust Magistrates Court on two counts of fraud and two counts of forgery. He was sentenced to six months imprisonment in respect of each count. He now appeals against both the conviction and sentence.

[2] The appellant was represented by an attorney who withdrew from the matter just before the charges were put to the appellant. The appellant was asked whether he would want to get another legal representative. The appellant chose to proceed with the matter and conducted his own defence.

[4] In mounting the attack against the conviction of the appellant, it was submitted that the magistrate erred in not warning the appellant that he has a right to remain silent when purportedly explaining the provisions of section 112 (2).

[5] It needs mention that before the legal representative of the appellant withdrew from the matter, it was put on record by the prosecutor that the matter was set down for trial and that the accused indicated that he intends to plead guilty. At that stage the legal representative of the appellant placed on record that he had discussed the case thoroughly with the appellant and he then requested to withdraw from the matter, which request was granted. The charges were then put to the appellant who pleaded guilty to all the counts, after having been questioned in terms of s112 (2).

i. that by admitting guilt the accused admitted the State's case;
ii. that the questioning in terms of s112(1 )(b) serves to protect accused against the consequences of an unjustified guilty plea i.e. it is not directed at self incrimination; and
iii. That any warning to the accused at that stage, would conflict with the spirit of section 112(1) (b) [ as well as section 121(1) and 119] and the scheme of Act 51 of 1977."
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[7] There are divergent views on the question whether the right to remain silent demands that before s112 (2) is employed an accused person must be informed of this right to remain silent.

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[11]  The question whether there is an obligation to inform an accused of his right to remain silent when asked questions in terms of s112 (2), in my view, must be answered in the context of the right to remain silent. It also requires appreciation of the import of s39 (2) of the Constitution, which provides as follows: " (2)    When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and object of the Bill of Rights."

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[13] Section 2 of the Constitution provides that 'This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

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"...whether there had been an irregularity or illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted."

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that the appellant intended to plead guilty. However, the magistrate did not simply accept the guilty plea in respect of all the counts, in respect of count 3 a plea of not guilty was entered in terms of s113 (1). The State then called a single witness in respect of count 3 charge. I am satisfied that the appellant was not prejudiced by the fact that he was not warned of his right to remain silent when s112 (2) was employed. I am accordingly of the view that the proceedings were fair and not tainted by the failure to so warn him.

[22] The appellant was in respect of counts 1 and 4 charged with forgery. The appellant admitted that he falsified a Degree certificate issued by the University of Johannesburg (count 1) by removing the original names thereon and inserting his names in April 2003.
In respect of count 4 the appellant also admitted that he falsified a degree certificate issued by the University of Zululand. He admitted in respect of both counts that he knew that what he was doing was wrong and had no right to do so. Mr. Mogotsi on behalf of the appellant conceded that the appellant was correctly found guilty on these count 1 and 4.

[23] The charge against the appellant in Count 3 was that on 17 April 2008 he wrongfully, falsely with intent to defraud gave out and pretended to Mandlakayise Alfred Makhudu that he is the Minister of Department of Land Affairs employed by the department of Land, Affairs and would build him a house were he to give him an amount of R650 in cash, to the loss and prejudice of Mandlakayise Alfred Makhudu, and that when he gave out and pretended as aforesaid well knowing that he is not the Minister of Land Affairs and this committed the crime of fraud.

[24] It is not in dispute that the appellant received from the complainant the amount of R650. 00. During his plea explanation the appellant admitted receiving this amount and further said that the complainant wanted him to assist him in processing a claim at the Land Affairs to get an RDP house. He informed the complainant to give him an mount of R650 so that he can open a file for him at his offices.

[25] The State called the complainant who confirmed that he gave the appellant the aforesaid amount. The reason he gave him the money was because the appellant and had informed him that he works for Land Affairs and was going to build him a house at the farm. The appellant gave him a piece of paper written Land Affairs Commissioner. The following day it was brought to his attention that the appellant was arrested. He too went to demand his money from the appellant but has not to date received his money.

[26] The appellant save for cross examining the witness did not testify in his own defence. The court accepted the evidence of Mr. Makhudu and convicted the appellant on this charge.

[27] It is contended on behalf of the appellant that this charge was prematurely brought against the appellant because he could not open a file for the complainant as the result of his arrest the following day to the receipt of the money.

[30] The appellant pleaded guilty to count 2. The appellant admitted that he made use of the stamp and equipment as mentioned in the charge sheet. He admitted that he knew that he was not employed at the Department of Health. He further stated that he interviewed some members of the staff in order to get information they as a party needed to persuade some action against the management. The magistrate convicted him on this count on the basis of his plea of guilty and explanation in terms of s112 (2).

[31] It was submitted on behalf of the appellant that the appellant did not admit all the elements of this offence and that the magistrate erred in convicting the appellant on this count. It is submitted that the conviction on this count should be set aside.

[32] The State conceded, quite correctly that the conviction on count 2 is not in accordance with the law and should be set aside. The appellant did not admit that he had intended to defraud. A plea of not guilty should have been entered in respect of this count. The conviction on this count should therefore be set aside.

[33] In respect of count 2 it was submitted by the State that the conviction should be set aside and appellant referred to the magistrate to be tried de novo on this count. This concession was correctly made since not all the elements were admitted by the appellant. The conviction of the appellant was not in accordance with justice but vitiated by an irregularity and should be set aside.

[34] I am of the view that since the setting aside of the conviction on count 2 is not on the merits but on a technicality, the appellant should in terms of s322 of CPA be referred back to the magistrates court for retrial in terms of s324 CPA.

[35] The appellant was sentenced to six months in respect of each count. There was no submission made on behalf of the appellant in this regard, f do not think that the sentences imposed in respect of those counts that must stand should be interfered with because they are not excessive.

[36]   In the result I make the following order:
1. That the appeal against conviction and sentence in respect of counts 1,3 and 4 is dismissed and the conviction and sentence on these counts are confirmed.
2. That the appeal against both convictions and sentence in respect of count 2 is upheld and the conviction and sentence are set aside.
3. That the case of the appellant in respect of count 2 is remitted to the Magistrates Court for the District of Mpumalanga at Volksrust for retrial before another magistrate in terms of section 322 read with s324 of the Criminal Procedure Act 51 of 1977.

Delivered on 08 December 2010

M. N. MAVUNDLA
JUDGE OF THE HIGH COURT

I agree.
R. G. TOLMAY
JUDGE OF THE HIGH COURT