Examination of Section 112(1) of the Criminal Procedure Act 51 of 1977
... punishment exceeds a fine of the amount of R1 500 or will be imprisonment without the option of a fine. Included in this subsection is that the presiding officer must question the accused in order to determine that the charges to which he/she pleads guilty are understood. The procedure carried out in this case is that the charges are read, and the accused is asked to plea. In terms of the guilty plea, the accused is further questioned in order to ensure that the presiding officer is, as stated in the case of S v Dunn, “satisfied that [the accused] understand[s] and admit[s] all the allegations contained in the charge sheet”. Upon the presiding officer being satisfactorily convinced that the accused is aware of the charges, he or she accepts the guilty plea of the accused. “The questions and answers must at least cover all the essential elements of the offence which the State in the absence of the plea of guilty would have been required to prove” . This subsection was written specifically to protect the accused, especially one who does not have a defence, and one who might not be able to understand the consequences of submitting a plea of guilty. In the case of S v Mokhonyo , the accused was charged with assault with intent to do grievous bodily harm. The accused was prosecuted in terms of section 112 (1)(b) and upon review it was held that “the magistrate had no right to convict the accused on his mere plea of guilty in the circumstances of this cases. He clearly does not understand the meaning of the provisions of section 112 (1)(b) which were designed to protect an accused, particularly and undefended and unsophisticated one such as the accused in casu, from the adverse consequences of an ill-considered plea of guilty.” Also, in S v Mkhuba , where the accused was charged of unlawful possession of firearms and ammunition and convicted on his plea of guilty, it was found that he had not been questioned in terms of section 112 (1)(b). Miller J held that the “offences with which the accused was charged are of a serious nature...and are therefore offences which do not fall to be dealt with in terms of the provisions of section 112 (1)(a)…He therefore could only have been convicted and sentenced on his guilty plea if the provisions of section 112 (1)(b) were complied with, which, inter alia, include that the presiding officer shall question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty.” The questioning of the accused set out in section 112 (1)(b) but is not necessary for section 112 (1)(a) serves to undermine the right to a fair trial as set out in section 35 (3) of the Constitution. This is because under the terms of section 112(1)(b), if the accused has plead guilty but does not answer the questions put to him, the presiding officer is obliged to enter a plea of not guilty whilst under the terms of section 112 (1) (a) the accused is not questioned to ensure understanding of charges nor is questioning required for the plea of guilty to be accepted. This variance as termed in the subsection of section 112 (1) also violated section 9 (1) of the Constitution, which states that “everyone is equal before the law and has the right to equal protection and benefit of the law.” The fact that it is only when section 1...