In the matter between:
 MICHAEL BAATJIES 
versus 
THE STATE

The matter before us relates to an appeal against sentence imposed on the appellant in the Magistrate's Court, Bishop Lavis.

The sentence so imposed arises out of conviction of the 20 appellant in the Magistrate's Court, Bishop Lavis, on 28 November 2006 for violation of the terms of the protection order issued against him on 6 January 2006, and out of a further conviction of the appellant on a charge of assault allegedly committed at the Magistrate's Court, Bishop Lavis, on 5 October 2006.

On 28 November 2006, the appellant, as an accused person, appeared before the magistrate where he pleaded guilty to 5 both charges of violating the terms of the protection order and as well as the charge of assault. Once the appellant had pleaded, the magistrate proceeded to question him ostensibly in terms of the provisions of Section 112(1)(b) of the Criminal Procedure Act 51/1977. The questions posed to the appellant are recorded as follows in the record of evidence, namely:-

beskermingsbevel, dit is nou 'n interdik het wat se onder andere dat u nie binne haar woning moet gaan nie? --- Ek gaan mos nie in haar huis nie, meneer, ek het nog nooit in haar huis gegaan nie.

wat so se? — Ja, meneer.
En op 11 September 2006 het u na 4 Sandweg, Bishop Lavis gegaan waar sy bly, het u soontoe gegaan? —- Waarna toe moet ek gaan?

	
			Ja, ek weet nie, ek vra net of u soontoe gegaan
het? — Dit is so.
			Het   u   soontoe   gegaan   met   of   sonder   haar
toestemming? --- Sonder haar toestemming.

			5 Oktober hier by Bishop Lavis Hof vir Sandna
			Koopman gedreig het om te se u gaan haar on
			doodmaak en dus uself skuldig gemaak het aan 'n
aanklag van aanranding? --- Dit is so, meneer.

It will be noted on basis of the portion of the court record cited above that the magistrate, in questioning the appellant at that stage as an accused person, did not seek to ascertain if the appellant was admitting all the allegations in the charge sheet in respect of both offences with which he was charged. The purpose of questioning of an accused person in terms of Section 112(1 )(b) of the Criminal Procedure Act, it has often been said, is twofold, namely:   (a) to determine whether an accused person admits the allegations in the charge sheet; and (b) to enable the presiding judicial officer to conclude for itself whether the accused is in fact guilty.

The elements of a charge based on the violation of the protection order in contravention of the provisions of section 17(a) of the Family Violence Act 1 16/1998 entail the following: namely (a) a protection order which should have been issued; (b) the terms of the protection order;(c) that the protection order was properly served on the accused;(d) that at the time of the alleged violation, the protection order was still of force and effect; (e) that the accused acted unlawfully; and (f) the intention on the part of the accused to violate the terms of the protection order.

The questioning posed to the appellant, then as an accused person by the magistrate, did not seek to ascertain from him whether: (a) he admits the protection order having been issued against him;   (b) whether he was aware of the terms of the protection order; (c) whether the protection order was properly served on him; (d) whether the protection order was still of force and effect when the offence complained of was committed; and (e) whether the accused's conduct was unlawful, all these being allegations contained in the charge sheet.

268:-

			"The proper approach ought to be that when the Court is 	called upon to decide whether an 					accused person's responses to its questions adequately supports a 	conviction under Section 				112(1 )(b) of the Criminal Procedure Act, its function is to evaluate the answers as if it were 				weighing evidence or to judge the truthfulness or plausibility. The Court's duty is simply to 					interpret them to see whether they substantiate the plea."

This matter comes before us by way of appeal against sentence only, but the consideration of fairness cannot allow the convictions in the form they are to stand.    In the normal course of events, after setting the convictions aside, we would have to refer the matter to the magistrate who presided at trial with the direction that he properly complies with the provisions of section 112(1)(b) of the Criminal Procedure Act, or to act in terms of Section 113 of the Criminal Procedure Act as the case may be, but the practical problem relating to this matter is that the appellant was sentenced as far back as 28 November 2006 and has been in custody since.    What further compounds the problem, so it has been brought to our attention, is that the presiding   magistrate   in   this   matter   is   in   the   meantime deceased,   although  this   problem   could   be   addressed   by another magistrate stepping into the shoes of the magistrate who initially heard the matter.

Having regard to all the circumstances of this matter, I would propose the following order which, in my view, is fair under the circumstances, namely:-

It so ordered.