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[2023] ZAECMKHC 105
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S v Benya - Review Judgment (CA&R 140/2023) [2023] ZAECMKHC 105 (19 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: CA & R:
140/2023
Delivered on 19
September 2023
In the matter between:
THE STATE
and
AKHONA
BENYA
REVIEW JUDGMENT
Bloem J
1.
The accused
was
charged in the magistrate’s court, East London “of
contravening section 17(b), read with sections 1, 5, 6, 7 and
17 of
the Domestic Violence Act, Act 116 of 1998 – contravening a
protection order”. His legal representative
handed a
written statement by the accused into court, in which the accused set
out the facts which he admitted and on which he
pleaded guilty.
The magistrate was satisfied that the accused had contravened the
prohibitions contained in the protection
order that was granted
against him on 29 March 2022. According to the protection
order, he was prohibited from abusing,
assaulting, threatening,
harassing or stalking the complainant, his grandmother. He was
convicted of “the offence”
with which he was charged and
sentenced to pay a fine of R4 000 or to undergo twelve months’
imprisonment, which was wholly
suspended for five years on condition
that he not be “
convicted of the
contravention of section 17(1) of Act 116 of 1998, committed during
the period of suspension
”.
2.
My preliminary view was that there were two
difficulties with the proceedings before the magistrate. The
first was the section
of the Domestic Violence Act under which the
accused was charged. The second was the section of the Domestic
Violence Act
to which reference was made in the suspensive condition
in the sentence.
3.
The first difficulty is dealt with.
Section 17 of the Domestic Violence Act was amended by section 22 of
the Domestic Violence
Amendment Act 14 of 2021. The amendment
commenced on 14 April 2023. Since the alleged offence herein
was committed
on 19 September 2022, the unamended provisions of the
Domestic Violence Act apply. Until 14 April 2023, section 17 of
the
Domestic Violence Act read as follows:
“
Notwithstanding
the provisions of any other law, any person who-
(a)
contravenes
any prohibition, condition, obligation or order imposed in terms of
section 7;
(b)
contravenes
the provisions of section 11 (2)
(a)
;
(c)
fails
to comply with any direction in terms of the provisions of section 11
(2)
(b)
;
or
(d)
in
an affidavit referred to section 8 (4)
(a)
,
wilfully makes a false statement in a material respect,
is
guilty of an offence and liable on conviction in the case of an
offence referred to in paragraph
(a)
to
a fine or imprisonment for a period not exceeding five years or to
both such fine and such imprisonment, and in the case
of an offence
contemplated in paragraph
(b)
,
(c)
,
or
(d)
,
to a fine or imprisonment for a period not exceeding two years or to
both such fine and such imprisonment
”
.
4.
There was no evidence before the magistrate
to support a conviction in terms of section 17(b) of the unamended
Domestic Violence
Act, but sufficient evidence to support a
conviction in terms of section 17(a) thereof. On the facts, the
accused should
have been charged with and convicted of having
contravened the provisions of the unamended section 17(a) of the
Domestic Violence
Act.
5.
The second difficulty is that the sentence
refers to section 17(1) of the unamended Domestic Violence Act, when
there was no such
section.
6.
The magistrate requested that the above
difficulties be reviewed and corrected. I requested the office
of the Deputy Director
of Public Prosecutions in Makhanda to express
an opinion on the magistrate’s request, particularly whether
the charge sheet
can, at this stage, be amended, regard being had
that section 86 of the Criminal Procedure Act which allows for the
amendment of
a charge “
at any time
before judgment
”; and what should
happen to the conviction and sentence if the charge cannot be amended
at this stage.
7.
The Director of Public Prosecutions
provided this court with an opinion prepared by Mr Maarman of that
office. I expressed
my gratitude to Mr Maarman for his helpful
opinion. Counsel submitted that it was apparent from his plea,
that the accused,
although not mentioning section 17(a) therein,
intended to plead guilty to having contravened the prohibitions
contained in the
protection order in accordance with the unamended
section 17(a), and not section 17(b), of the Domestic Violence Act.
He
was of the view that the accused was accordingly not prejudiced by
the erroneous reference in the charge sheet to section 17(b)
of the
Domestic Violence Act.
8.
Regarding the reference to section 17(1) of
the Domestic Violence Act in the sentence, counsel submitted that it
appears to have
been an error on the part of the magistrate, who
evidently had the provisions of the unamended section 17(a) in mind.
In
my view, the magistrate must have laboured under the erroneous
impression that the amended section 17(1) applied to this case.
The provisions of the unamended section 17(a) are the same as those
of the amended section 17(1). I agree with Mr Baartman,
that in
both instances, there was reference to a wrong section of the
Domestic Violence Act with no prejudice to the accused.
9.
Counsel’s
submission, that the charge sheet cannot be amended on review, must
be sustained. Section 86(1) of the Criminal
Procedure Act
provides that a charge sheet may be amended at any time before
judgment. In this case the magistrate had already
delivered
judgment. It follows that the effect of the delivery of the
judgment is that the charge sheet cannot be amended
under section 86
of the Criminal Procedure Act.
[1]
10.
Mr Baartman submitted that the solution to
the first problem is to be found in section 270 of the Criminal
Procedure Act, which
reads as follows:
“
If
the evidence on a charge for any offence not referred to in the
preceding sections of this Chapter does not prove the commission
of
the offence so charged but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.”
11.
The first point to be made is that section
270 can be invoked only in respect of an offence not referred to in
Chapter 26 (sections
256 to 269A) of the Criminal Procedure Act.
In this case, the charge that was put to the accused was not in
respect of an
offence referred to in any of the above sections.
The next enquiry is whether the essential elements of the alleged
competent verdict, that is a conviction under the unamended section
17(a), were included in the original charge. As pointed
out
above, the difference between the unamended section 17(a) and the
amended section 17(1)(a) is only the section numbering.
The
content of both sections is the same. It follows that the
charge included the essential elements of the offence
under the
unamended section 17(a) of the Domestic Violence Act. In the
circumstances, the accused should have been convicted,
not as charged
but, of the offence committed under the unamended section 17(a) of
the Domestic Violence Act.
12.
Regarding the reference to section 17(1) in
the suspensive condition in the sentence, it must follow, regard
being had to the preceding
paragraphs hereof, that reference should
have been made to the unamended section 17(a) of the Domestic
Violence Act. For
the sake of clarity, the conviction and
sentence, as they should have read, are set out in the order
hereunder.
13.
In the result, it is ordered that the
conviction and sentence be and are hereby altered to read as follows:
“
1.
The accused is convicted of the offence contemplated in
section 17(a)
of the
Domestic Violence Act 116 of 1998
, in that he contravened the
prohibitions imposed on him in a protection order issued on
29 March 2020.
2.
The accused is sentenced to pay a fine of R4 000 or to undergo
imprisonment for 12 months.
The entire sentence is suspended
for five years on condition that the accused is not convicted of a
contravention of
section 17(a)
of the
Domestic Violence Act,
committed
during the period of suspension.”
GH BLOEM
Judge of the High
Court
I agree.
BR TOKOTA
Acting Deputy Judge
President of the High Court
[1]
S
v Mgqele
2006
(GDR) 0977 (T) paras 11 and 12.