6
distribution charge against him. The appellant could decide thereafter what his
response to the charge would be.
[21] The appellant was entitled to deal in his plea statement with only the facts
charged and to decline to disclose or admit anything more in respect of criminal conduct
committed by him but not alleged in the charge. Moreover, it was not for the appellant to
attempt to state in his plea statement the charge that he thought the State was
preferring against him or to plead to a non-existent charge, on the basis of what he
believed the State was prosecuting him for. Ms Ryan and Mr Maluleke were agreed that
what the appellant said in his plea statement regarding distribution could not cure the
irregularity in the proceedings and the conviction and sentence in respect of the
distribution fell to be set aside.
[22] It is clear from the CPA that a charge must be in writing. The charge against an
accused is identified in the charge sheet.1 It is at the instance of the State that the
accused is brought into court to answer criminal charges preferred against him by the
State. Therefore, the charges must be put by the prosecutor and not anyone else.2
[23] In S v Sithole and Others,3 the court stated at 230 c-d:
‘To convict an accused on a charge he was not requested to plead to is in my view such
a departure from the rules and principles governing the conduct of criminal proceedings
that it cannot be countenanced. It is further a fundamental right in terms s 35(3)(a) of
our Constitution...that an accused has a right to a fair trial which includes the right to be
informed of the charge with sufficient detail to answer it.’
[24] In Sithole there were multiple charges. Some were put to the accused and some
were not. The accused did not plead to the charges that were not put. Nevertheless, the
1
2
3
S v Mandlazi GP case no A765/2016, 22 May 2018 at [11].
S v ZW 2015 (2) SACR 483 ECG at [41(c)].
S v Sithole and Others 1999 (1) SACR 227 T(‘Sithole’).
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos