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case, the Magistrate was unable to do so, in respect of the allegation of distribution, as
there was no such charge. On record the Magistrate did not raise with the State or the
defence the question of the existence of a formulated charge of distribution and he did
not establish what the alleged number of contents was in any actual charge, four (4) or
65.
[18] The appellant stated in his plea statement that he was pleading guilty to
distribution of 65 contents of child pornography. The appellant acknowledged that at the
time of drafting the charge these 65 contents were not available to the State and
therefore the State only charged him with distribution of the contents in counts 2222,
2247, 2270 and 2302.
[19] The prosecutor was granted a number of postponements to draft the charges.
The completed charge sheet was handed to the appellant on 16 July 2018. The
appellant had approximately six (6) weeks to examine the charge sheet, from 16 July
2018 to the date of his plea on 31 August 2018. In the event of a formulated charge in
the charge sheet of distribution of the four (4) contents, it is surprising that he admitted
that he was guilty of distributing 65 contents in his plea statement. This was in the
appellant’s initial plea statement. In his amended statement, the appellant again
pleaded guilty to distribution of 65 contents and he added that the State was only able
to charge the four (4) contents, as stated above. He also stated that the State was
prosecuting him for the 65 contents.
[20] It cannot be inferred from the plea statement, as amended, that the appellant had
had sight of or had knowledge of a formulated charge of distribution of the four (4)
contents before he pleaded. In any event, it appears from the record that there was no
such charge. The appellant’s right to a fair trial in terms of section 35(3) of the
Constitution, Act no 108 of 1996, included the right to know the details of such
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