S v BIZWICK 1987 (2) ZLR 83 (S)

Flynote

Criminal procedure — plea of guilty — Criminal Procedure and Evidence Act [Chapter 59] — s 255(2)(b) — theft by finding — procedure on plea not correctly followed — four elements of crime not put seriatim to accused — possibility that property was res derelicta not canvassed.

Headnote

The appellant, an apparently respectable and trusted farm employee aged 55 years, had pleaded guilty to theft by finding of a bicycle which he had found lying in the bush and of which he had taken possession. No owner had come forward to claim it.

The magistrate had failed to put separately to the appellant the four elements of the crime of theft for the purpose of satisfying himself as to the plea of guilty, in terms of s 255(2)(b) of the Criminal Procedure and Evidence Act [Chapter 59], and had not canvassed at all the fourth element viz that the property must be property capable of being stolen. At least three or more avenues of enquiry should have been explored by the magistrate, such as the following:

• (1) has the appellant admitted that the bicycle was not abandoned?

• (2) from what facts does the appellant draw the conclusion that it was not abandoned, and is that conclusion a necessary one on the facts?

• (3) did the appellant genuinely, even though mistakenly, believe it was abandoned?

• (4) did he intend to deprive the owner of the property, or did he intend to use it openly but to hand it over if claimed by the true owner?

Held, that in the circumstances the plea of guilty should be set aside and the matter remitted to the magistrate for him to put the charge to the appellant again, and with directions as to the proper procedure to be followed by the magistrate.