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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

REVIEW NO: 20070748

DATE DELIVERED: 1/2/08

In the matter between:

THE STATE

and

ZIMASA MLILWANA

REVIEW JUDGMENT

PLASKET J

[1] The accused was charged with two counts. The first was theft, the State alleging that she stole a credit card, and the second was fraud, the State alleging that she used the credit card to purchase goods to the value of R2 284.42 from Checkers in Nahoon, East London where she worked as a cashier.

[2] When she appeared in the East London Magistrate’s Court for trial, count 2 – the charge of fraud – was withdrawn. She pleaded guilty to count 1, the charge of theft of the credit card. She was convicted of theft and sentenced to 24 months imprisonment conditionally suspended for five years and was ordered to reimburse the amount of R2 284.42 to Checkers.

[3] When the matter was placed before me on automatic review, I directed the following query to the magistrate:

‘The second charge, that of defrauding Checkers of goods to the value of R2 284.42 was withdrawn. Despite this, the questioning of the accused in terms of section 112 of the Criminal Procedure Act 51 of 1977 seems to have been about this charge and not the first charge, that of the theft of a credit card. In these circumstances, was the accused properly convicted on the basis of her plea? If so, is the sentence not excessive for the theft of a credit card and was it competent to order the accused to repay Checkers for a loss that was not part of the offence of which the accused was convicted? ‘

[4] The section 112 proceedings are recorded as follows:

‘Q : Did anyone in any way force you to plead guilty?

A: No

Q: Were you employed at Checkers, Nahoon, East London between 03/04/2007 – 04/04/2007?

A: Yes. Cashier. I was there 3 years.

Q: Did you purchase goods from Checkers over that period?

A: Yes. I bought goods valued at R2 284.42 on a credit card three times from a credit card I stole. I cannot say who the owner was, or the credit card number.

Q: Did you realize you were committing a crime?

A: Yes.

Q: How were you caught?

A: My fellow employees know I had no credit card. They saw me purchasing and informed management. I know I committed a serious crime.’

[5] It is further recorded that the court was ‘satisfied all elements of charge and allegation in the charge sheet are admitted and accused is found guilty of theft’.

[6] The magistrate has, in response to my query, correctly conceded that she did, in fact, misdirect herself and that the proceedings were not in accordance with justice.

[7] The conviction and sentence – including the order to reimburse Checkers – are set aside.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

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J. D. PICKERING

JUDGE OF THE HIGH COURT

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