S v MM 2018 (1) SACR 18 (GP)
Plea— Plea of guilty — Written statement in terms of s 112(2) of Criminal Procedure Act 51 of 1977 — Court establishing after conviction that not all necessary elements of liability admitted — Powers of trial court — Court entitled to proceed in terms of s 113(1) of Act and not necessary to have matter reviewed by High Court.
The accused was a boy under the age of 14 years who had pleaded guilty in a regional magistrates’ court to a charge of contravening s 51(3) of the Criminal Law Amendment Act 105 of 1997, in that he had inserted his fingers into the anus of a 6-year-old complainant. His legal representative handed in a statement in terms of s 112 of the Criminal Procedure Act 51 of1977 and he was convicted on the basis of that statement. The magistrate only became aware after conviction that the accused was under the age of 14 at the time of the offence and that there was nothing on record to prove that the accused had criminal capacity. The conviction had to be set aside and the magistrate sent the matter on special review where differences emerged as to the proper procedure to be followed.
The court held that it was appropriate to act in terms of s 304(2)(c)(v) of the Criminal Procedure Act 51 of 1977. As the regional magistrate was empowered under s 113(1) to correct the error, there was no need for the court itself to make any such order. (See .)