S v BONIFATIUS KONSTANTINOS
CASE NO. CR 61 /2010
IN THE HIGH COURT OF
In the matter between:
HIGH COURT REVIEW CASE NO. 1679/2009
CORAM: VAN NIEKERK, J et
Delivered on: 30 September 2010
SPECIAL REVIEW JUDGMENT
SWANEPOEL,J.:  This
matter came before me as a special review in terms of section
116(3)(a) of Act 51/77 as the then Regional Court’s magistrate
was not satisfied that the conviction in the district court of the
abovementioned accused was in accordance with justice.
 The accused was originally
arraigned for theft – taking into consideration the provisions
of Stock Theft Act, Act no. 12 of 1990 and after conviction the
matter was transferred to the regional court for sentence. It should
be noted that the prosecutor in the regional court agreed with the
learned regional magistrate that the matter should have been sent on
 Although the undefended accused
originally pleaded guilty to the charge and admitted that he
slaughtered the sheep of the complainant, the following also appears
from the questioning in terms of section 112(1)(b) of Act 51/77
“Q: Can you explain to court
what transpired leading to your arrest?
A: I did not caught the sheep, I
just returned from work and found the
sheep already slaughtered and
Q: Who slaughtered the sheep?
A: I don’t know, we are four
on the farm.
Q: How many carcasses did you had?
A: I had one carcass but I did not
steal or slaughtered it.”
Thereafter a plea of not guilty was
entered and the State proceeded with the leading of evidence.
 The State called two witnesses to
wit the complainant who testified about a call he had received from
his brother pertaining to stock. The brother however was not called
to confirm the hearsay evidence of the complainant. The second
witness was the police officer who had found the accused and the
small boy with a bag of meat, but he could not tell the court what
meat it was. During his investigation he took the accused to the
alleged scene of the crime where the accused made certain pointing
outs and the
witness also observed shoe prints at
the scene which allegedly matched the shoe prints worn by the
accused. He did not give any evidence as to the uniqueness of the
prints and his evidence on this score remains merely an opinion on
which the court could not rely.
Furthermore, the accused was not
warned and appraised by the investigating officer of his
constitutional and statutory rights to have remained silent and/or
that he was not obliged to give any evidence in self incrimination.
Compare in this regard S v Malumo and Others (2) 2007(1) NR
198 where Hoff J ruled that any evidence obtained without the
necessary warnings was inadmissible.
 For the abovementioned reasons I
agree with the learned regional court’s magistrate that the
conviction cannot stand and is hereby set aside.