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[2021] ZALMPPHC 74
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National Director of Public Prosecutions v Mokatse (A24/2021 SH41/2013) [2021] ZALMPPHC 74 (22 October 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
APPEAL
CASE NO: A24/2021 REGIONAL CASE NO: SH41/2013
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED
Date: 21/
10/ 2021
In the matter between
:
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
APPELLANT
and
MACHUENE
CAROLINE
MOKATSE
RESPONDENT
JUDGMENT
NF
KGOMO J
et
LEDWABA
AJ
[1]
This
is an appeal against the decision of the Regional Magistrate of
Mokopane
,
Mr
.
G.C Pretorious
,
on 30 April 2021 in which the Learned
Magistrate refused to hold an enquiry in terms of section 18 (1) of
the Prevention of Organised
Crime Act
,
2008 (Act 121 of 2008) (hereinafter
referred to as
"
POCA
"
)
on the ground that the Mokopane Regional Court lacked jurisdiction to
do so since it was not the convicting court of the Respondent
herein
.
FACTUAL BACKGROUND AND HISTORY
[2]
The Respondent was charged
i
n
the Regional Court
,
Mokopane
on one (1) count of theft in circumstances where section 1 read with
part 2 of Schedule 3 of
the Criminal Law Amendment Act
,
1997(Act 105 of 1997) ("the
Minimum Sentences Act") are
applicable as well as three (3) counts of money laundering in
contravention of section 6 of
POCA.
[3]
The Regional Court at Mokopane (the
"
Court
a
quo
"
)
acquitted him on all charges/counts
at
the
trial. The Appellant appealed against the acquittal to
the High Court here in Polokwane
in terms of section 310 of the Criminal
Procedure Act
,
1977
(Act 51 of 1977) (
"
the
Criminal Procedure Act")
.
The
High Court
,
acting
in terms of the applicable section (s) of the Criminal Procedure set
aside the acquittal of the Respondent and then remitted
the matter
back to the Court a quo for sentencing proceedings to be embarked
upon
.
[4]
On 07 April 2018
,
the Public Prosecutor
,
duly authorized in terms section 18 (5)
of POCA, applied for a confiscation order enquiry to be held before
the actual sentence
as
required in cases of this nature where
wrongdoers are supposed to be stripped of profits or benefits of
crime
.
[5]
This application was not
opposed by
the
Respondent
through her
legal
representative
,
i.e the state and the defense were ad
idem that the requisite enquiry should be held
.
To
that
effect
,
a
draft order was by agreement handed over to the Presiding Magistrate
in which
the
parties
agreed that an
order should
be
granted
with
immediate
effect
,
instituting an enquiry
into
any benefit the Respondent may have
derived from the offence she had been convicted of.
[6]
On
07
August 2018
further
,
the
Court
a
quo
formally ordered
that
an
enquiry as
alluded to above be held
.
The holding of that enquiry was
postponed to a further date
,
to
enable the court a quo to make an informed determination in terms of
section
18 (2)
of
POCA
,
Both
the Appellant and the Respondent were ordered (by the court
a
quo)
in
terms of section 21 of POCA to file
certain affidavits relating to the Respondent
'
s
benefits
(if
any)
from the proceeds of her unlawful activities as well as set out her
realizable
assets
(if
any)
.
[7]
Then
followed several further postponements
,
which were also occasioned by the
Respondent's appeals against her conviction
,
which appeals were to the Supreme Court
of Appeal as well as the Constitutional Court. Both appeals were
unsuccessful.
[8]
The holding of the enquiry was postponed
or adjourned to 26 March 2021
.
On
26
March
2021
,
the
hearing of
the
confiscation enquiry was postponed to 30 April 2021. The parties were
also directed to file heads of arguments on the matter
,
which directive was duly
complied
with
.
[9]
On 30
April
2021 when the matter was called in Court
,
the Respondent
raised,
for the first
time
,
a point in limine to
the
effect
that
the
Regional Court did
not
have
the
jurisdiction
to hear or deal with the confiscation enquiry as it
(Regional
Court)
was not
the
convicting court within the meaning of
sections 18 (1), 18 (3) and 18
(4)
of
POCA.
[1
0]
After hearing argument from both
sides
,
the
Learned Magistrate in the Court
a
quo
agreed with the Respondent's
assertions and
refused
to hold
the
enquiry
.
It
found among others that what the High Court directed it to do at the
Appeal over-turning the acquittal of the Respondent was
sentencing
and nothing
else
.
[11]
It should be noted that the
Court a
quo
proceeded to sentence the Respondent
to 15
(fifteen)
years
imprisonment
on 17 January 2019 while the requisite
confiscation enquiry was still pending.
ISSUES TO BE DECIDED IN THE
APPEAL
[12]
The issues to
be
decided in this appeal
are-
12.1
Whether
the Learned Regional Magistrate erred in ruling that he was not the
Convicting Court within the meaning of section 17 and
18 of POCA
,
thus lacking the jurisdiction to conduct
the
requisite
enquiry he
had
already undertaken to
hold
earlier
,
and
12.2
Whether in spite of the Court a
quo
having
proceeded
to sentence the Respondent in spite of the confiscation enquiry not
having been held and concluded
,
that
Court
could
still
proceed to entertain the enquiry post
sentence
,
regard
being had to the provisions of sections 17 and 18 of POCA and section
310
(4)
and
(5)
of the
Criminal Procedure Act.
THE LEGAL FRAMEWORK
[13]
In terms of section 18 (1) of POCA
,
a confiscation order may only be made
once-
13.1
the defendant has been convicted of an
offence
;
and
13.2
the Court finds that he or she has
benefited from the crimes or offences of which he or she has been
convicted or from any other
criminal activities or criminal
enterprise sufficiently related to those crimes/offences.
[14]
Section 18
(1)
reads as
follows
:
"
(1)
Whenever a
respondent
is
convicted of an offence
,
the
court convicting the respondent may
,
or
on
the application of
public
Prosecutor
,
enquire into any
benefit which the respondent may have
derived from-
(a)
That offence
,
or
(b)
Any other offence of which the
respondent has
been
convicted of
at
the same
trial
;
or
.
(c)
Any criminal activity which the court
finds to be sufficiently related to those offences
".
"If
the
court finds that the respondent has so benefited, the court may
,
in addition to any punishment
which it may impose in respect of the offence, make an order against
the respondent for the payment
to the state of any amount it
considers appropriate and the court
may
make any
further orders as it may deem fit
to
ensure
the effectiveness and fairness of the order".
(my
emphasis)
[15]
Section 18
(3)
of POCA reads as
follows
:
"(3)
A court
convicting a respondent may
,
when
passing sentence, indicate that
it will
hold an enquiry contemplated in
subsection (1) at a later stage if-
(a)
It is satisfied that such enquiry will
unreasonably delay the proceedings in sentencing the respondent
;
or
(b)
The
public
prosecutor applies to
the
court to first sentence the respondent
and the
court
is
satisfied
that
it
is
reasonable and
justifiable
to
do
so
in
the
circumstances"
.
[16]
Section 18 (4) provides that if the
judicial officer who convicted the respondent is absent or for any
other reason not available
,
any
judicial officer of the same court may consider an application
referred to in subsection (1) (of section 18) and hold that enquiry
and he or she may in such proceedings take such steps as the judicial
officer who is absent or not available could lawfully have
taken.
[17]
Section 18 (6) provides that a court
before which proceedings under this section are pending, may-
17.1
in considering an application under
subsection
(1)-
17.1.1
refer to the evidence and proceedings at
the
trial
;
17.1.2
hear such further oral evidence as the
court may deem fit;
17.1.3
direct
the public prosecutor to tender to the court a statement
r
eferred
to in Subsection (3) (a) of that section
;
and
17.2
Subject to subsection (1) (b) or (3) (b)
of section 21
,
adjourn
such proceedings to any day on such conditions not inconsistent with
a provision of the Criminal Procedure Act
,
as
the
court may deem fit.
[18) Section 310 of the Criminal
Procedure Act is also relevant to confiscation orders. It will serve
a good purpose to quote its
subsections verbatim.
[19) Section 310 (1) read thus: -
"when
a
lower court has in criminal proceedings given a decision
in
favor of the accused on any question of
law
,
including
an order made under 85
(2)
,
the attorney general or
,
if a body or a person other than the
attorney general or his representative
,
was the prosecutor in the
proceedings
,
then
such
other
prosecutor
may
require
the judicial officer concerned to state a case for the consideration
of the provincial or local division having jurisdiction
,
settings forth the question of law and
his decision thereon and
if
evidence
has been heard , his findings of fact in so far as they are material
to the question of law".
[20) Section 310
(2)
reads
;
-
"
when
such case has been stated, the attorney general or the other
prosecutor as the case may be
,
may
appeal the decision in the provincial or
local
division having jurisdiction
"
.
[21] Section 310 (4) reads thus;
-
"
If
the appeal is allowed
,
the
decision appealed from
,
shall
,
subject to the provisions of sub section
(5) and after giving sufficient notice to both
parties
,
re-open the case in which the decision
was given and deal with it
in
the
same manner as
it
should
have dealt there with if it had given a decision in accordance with
the law as
laid
down by the provincial
or
local
division in question.
"
[22)
Section
310
(5)
reads
as follows
; -
"
in
allowing the appeal
,
whether
wholly or in
part
,
the provincial or local division may
itself impose such sentence or make such order as the lower court
ought to have imposed or
made
,
or
it may remit the case to the court to take such further step as the
provincial or local division considers proper
.
SUMMARY OF APPELLANTS GROUNDS
OF APPEAL
[23] In a
nutshell
,
the
Appellant's principal grounds of appeal were that the
court a
quo
erred
-
23.1
in
not applying the principle of
fuctus
officio
in that it belatedly made a
U
-
turn
after initially
agreeing
and
deciding
to
hold
the
confiscation enquiry
and
postponing that
enquiry several times after the
requisite affidavits setting out what each sides arguments are
.
"
...
The
Court
'
s
belated about
turn
is
irregular and
falls
foul
of
the
principle
of
functus
officio
in which decisions of
officials are deemed to be final and binding once made and cannot be
revoked by the court of
i
ts
own accord
,
(more-so)
further
,
that
as the court held
,
the
above steps
(
taken
in
preparation
of the holding of the enquiry) were not for the purpose of simply
preventing delays and identification of
issues
".
(See Page 20 Paragraph 1.4 of
Appellant's heads of argument)
23.2
In
holding that the
reason it was not
prepared to hold the enquiry was that it
was not the
convicting
court
;
that
the High Court
was
the
convicting Court since it itself had
initially acquitted the Respondent and the High Court subsequently on
appeal and found her
guilty of theft in
the context of POCA
.
23.3
In not correctly interpreting section
310 (4) and (5) of the Criminal Procedure Act, which provisions
explain how after an appeal
,
the
trial Court still retains the prerogative and duty to conduct the
enquiry and also sentence the Respondent once it
(High
Court) has not arrogated those duties
unto
itself.
23.4
In that the Court a
quo
generally misconstrued the purposes
of holding an enquiry and sentencing, and irregularly regarding them
as separate procedures,
independent of each other and
23.5
In
acting as if the section 18
(1)
confiscation enquiry was in issue during
the Appeal in the High Court. That-
"....
the
jurisdictional
requirement
of section 18
(1)
application
and
enquiry
is
the
conviction
of
the accused in the criminal case.
The
High Court could
therefore
not
have
pronounced on any application in terms of section 18 during the
appeal against the acquittal"
.
(See page 4 paragraph 2.12 of the
Appellant's heads of Argument.)
[23]
The
high-water mark of the Respondent's argument primarily was based on
section 17 of POCA
,
wh
i
ch
reads as follows:
-
"
17.
For the purposes of this chapter
,
the
proceedings contemplated
in
terms
of this chapter against the defendant shall be concluded when-
(a)
The defendant is acquitted or found not
guilty of an
offence
;
(b)
Subject to section 18 (2) the court
convincting the defendant of an offence sentences the defendant
without making a confiscation
order against him or her; or
(c)
The conviction in respect of an offence
is set aside on review or appeal
;
or
(d)
The defendant
satisfies
the confiscation order made against him
or
her
".
INTRODUCTION OF NEW ASPECT BY
RESPONDENT ON THE DATE OF HEARING
25. On the
date
of
the
argument of this
matter
,
counsel for
the Respondent half-
heartedly attempted to introduce a new
matter into the arguments
,
namely
,
that since the Respondent had filed
leave to appeal or petition to the Supreme Court of Appeal
,
this appeal should be postponed until
the Supreme Court of
Appeal
had ruled over it.
[26]
This court ruled that the issues to be
decided here (in this Appeal) were those found within the four
corners of the papers filed
of record. Furthermore
,
that the issues here are clearly
circumscribed and cannot be delayed by what may or may not happen at
the Supreme Court of Appeal.
WHICH IS THE CONVICTION COURT
[27]
The Respondent argues that since the
Regional Court had initially acquitted the Respondent and such
acquittal was overturned by
the High Court, which returned a verdict
of guilty of the crime of theft
,
the convicting court was thus the High
Court
.
[28]
This was vehemently opposed by the
Appellants
.
They submitted that
the court a quo misconstrued the law in
finding that it was not the convicting
court
.
[29]
It
is
a given that
in
the
scheme under POCA
,
the
court
sentencing the accused pe
r
son
must
first
conduct a confiscation enquiry to
determine whether or not
the accused
person benefited from the commission of
the
crime
.
[30]
The sentencing must be preceded by the
confiscation enquiry unless the court of Appeal decides to do the
confiscation enquiry and
sentence as contemplated in section 310 (5)
of the Criminal
Procedure
Act.
[31]
The words and
import
of section 310 (4) of the
Criminal Procedure Act are clear and
unambiguous: once the Appellate Court or court on appeal overturns a
judgment of a lower court,-
"...
the
Court
which gave
the
decision appealed from shall.
...
,
.
.
.
re-open
the case in
which
the decision was given and deal with it in the same manner as it
should have dealt there with if it had
given a decision in accordance with the
law as laid down
by
the Provincial or Local Division
.
.
"
[32]
In this case, the High Court overturned
the Court a
quo
'
s
decision and remitted the case back
to it (court
a quo)
for
sentencing
proceedings.
[33]
Sentencing proceedings here pre-supposed
or
meant
the
holding
of the
confiscation
enquiry and the passing of sentence
itself.
[34]
The court a quo duly accepted its
mandate to do the necessary: it made all preparations to hold the
requisite confiscation enquiry before
the actual sentencing
.
After several postponements, it took the
conscious decision to proceed with the sentencing of the Respondent
while the confiscation
enquiry was made to
pend.
[35]
That
is
allowed to the court
a
quo
in
section
18
(3)
of
POCA which states that the Court about to deal with the confiscation
application or enquiry and the sentencing may elect to postpone
the
confiscation enquiry to a later date and proceed with sentence if
it
is satisfied that such enquiry
will
unreasonably
delay the sentencing proceedings or if
the prosecution applied for that to be
done
.
[36]
In
casu
,
there were several postponements of the
confiscation enquiry and ultimately the trial court took that
conscious decision to first
deal with sentence and only proceed with
the enquiry at a later
state.
[37]
The above arrangement was disturbed on
the date the enquiry was to be held by counsel for the Respondent
coming up with the point
in limine to the effect that the court a
quo
was not the convicting court and
thus did not have jurisdiction to deal with the enquiry.
[38]
The Appellant submitted that this
course of action fell foul of the principle of
functus
officio
.
[39]
After careful consideration of the
relevant principle and material facts inc
i
dental
thereto
,
this
appeal court agrees with the Appellant's contentions
.
[40]
The Appellants had satisfied the
jurisdictional
requ
i
rements
for the Regional Court or the court a
quo
to
hold the confiscation enquiry
.
The
court a
quo
agreed
to the holding thereof and ordered the necessary preparations to be
made
.
It is
our finding that by allowing the point in limine tendered by the
Respondent
,
the
trial court or court a
quo
misdirected itself on the law.
[41]
Our higher courts also ruled that the
scheme of things in Chapter 5 of POCA where sections 17 and 18 are
found talk about the trial
court as the convicting court i
r
respect
i
ve
of the
fact
that
the
High Court intervened and overturned the
lower court
'
s
earlier de
c
ision
.
[42]
The trial court here is the
Regional Court
.
[43]
In
Phillips
and Others v National Director of Public Prosecutions
2003 (6) SA 447
(SCA),
Howie P reaffirmed this as
follows at paragraph
[7]
:
"Chapter
5
comprises sections 12 to 36
(of
POCA)
.
In section 18
(1)
it is provided that in the event of any
confiscation, the trial court may hold an enquiry to determine
whether the accused referred
to
"
in
the Act as defendant) derived any benefit from his offence. If so
,
that court may make a confiscation order
against him
".
[44]
Section 18 of POCA as well as section
310
(4)
and
(5)
of the
Criminal Procedure Act confer the requisite jurisdiction on the
Regional Court
,
Mokopane in this case to hold the
confiscation enquiry in addition to sentencing the respondent.
[45]
The confiscation enquiry is intended to
determine whether or not the convicted accused benefited from the
crimes he or she has been
convicted of
.
As a result
,
the sentence found to
be
the
appropriate sentence does
not
have
any
bearing
on
the
outcome of the confiscation enquiry
.
Should the
court find that the accused has unduly
benefitted
,
he or she should be deprived of such
undue benefits. Consequently
,
the
Respondent's arguments that the
postponed or anticipated confiscation
order could have a detrimental effect on
the sentence process is without merit.
The court a
quo
decided
to proceed with the sentence part of the proceedings when in
possession of the facts and circumstances that are material
to the
postponed confiscation
enquiry
.
[46]
Furthermore, it should be borne in mind
that the appeal to the High Court by the Director of Public
Prosecutions related only to
the question of law relating to the
basis on
which the Learned Magistrates in
the court a
quo
had
acquitted the respondent in the case. At that point, there was no
pending application in terms of
section
18 of
POCA.
(47] It is reiterated that the
court a quo misconstrued the meaning and
import
of section 18 of
POCA. That
court
(court
a
quo)
had
the
requisite jurisdiction to deal
with
confiscation enquiry
.
(48] It should also be noted that
at
the
hearing of this appeal
,
counsel
for the respondent did not say anything concerning the appellant's
reliance on the
functus officio
principle. As such, those
submissions on this
principle
remain
unanswered.
[49]
It is our law
as reiterated
in
section
310
(4)
among
others, that once the appeal court reversed the
"
wrong
findings
"
of
the court a
quo
and
substituted them with the correct verdict
,
the trial court retained all the
functions and jurisdiction it was empowered
with
.
[50]
0 Regan ADCJ put it as fellows in
S
v Shaik and Others
[2008] ZACC 7
;
2008 (5) SA 354
(CC) at paragraph
[22]
-
[23]
"
[22]
It will be useful at
this
stage
briefly to describe this scheme of criminal confiscation contemplated
by the Act confers a power on
a
criminal court to
make
a confiscation order against a person who has been convicted of a
crime
where
the court has found that the person has benefitted from the
crime
.
[23] Once a person has been
convicted the prosecutor may apply for a
confiscation
order
.
In
order for confiscation order to be made, the court must find that the
person convicted had benefit from an offence of which he
or she has
been
convicted
or
of any offence and
the
court
may
then
make
an
order
that
the
person pay
to the
state
any
amount it considers appropriate
".
[51]
Once more the Constitutional Court here
also reaffirm that the trial court is the court that should deal with
the confiscation order
and sentencing unless any higher court that
interfered with the lower court
'
s
ruling, overturning an acquittal for example
,
decides to do the confiscation enquiry
and the sentencing
itself.
[52]
In
our
case
,
the High
Court
after
over-turning the Respondent's acquittal remitted the case back to the
court a quo for
sentencing
.
[53]
In the context of the scheme of things
in terms of POCA, sentencing means the conduct of the confiscation
enquiry and the sentence
itself
.
[54]
The
court
in
NDPP
v
Ramluchman
(677/15)
[2016]
ZASCA
202
(9
December 2016)
stated
the following at paragraphs [19] and
[20]
,
again
reaffirming the role of
the trial
court as follows:
"
...
there is a close connection between the
criminal conviction and the
confiscation
order and that the discretion conferred upon a court by section 18 is
a discretion to determine the amount that it
should order a defendant
to pay
.
That
determination is made once the court has convicted the defendant of a
criminal offence and the same time imposes a sentence
upon such a
person
.
The
presiding officer upon whom the
discretion is conferred by stature is
normally the presiding officer who presided over the criminal trial
and had sentenced the
accused. Such a judicial officer would have
heard all the evidence and the arguments in the criminal trial and
would
i
n
the circumstances, have been appraised of all the issues in the case
.
Consequently,
the discretion to deal with the
confiscation order is analogous to the discretion to determine the
proper sentence to be imposed
in criminal proceedings
(See
NDPP v Gardner & Another
[2011]
ZASCA 25
,
2011 (1) SACR 612
(SCA),
With
that in mind
,
the
legislation sought to ensure that it would be the court which would
determine the appropriate amount
to
be
confiscated
.
It
is
only
in
instances
where
the
presiding officer who convicted the
defendant is absent or for any reason is not available, that another
judicial officer may be
approached in his stead in terms of section
18
(4)
of
POCA
".
[55]
The above excerpt reaffirms that the
trial court is the convicting court
.
[56]
On the fuctus officio principle
,
the trial court had already issued an
order or decided to hold the confiscation enquiry. That decision was
final and binding on
it. It could not be revoked by that court on
its own accord. The
principles applicable in
"
Oudekraal
"
became of issue
.
[57]
As
held
in MEC
Health,
Eastern Cape
Province
v
Kirkland
(473/12)
[2013]
ZASCA 58(16 May 2013)
;
"
There
is no suggestion
......,....
that
the obviousness of
the
unlawfulness
is a factor of any relevance. Indeed
,
Hoexter understands Oudekraal
to mean- and she
is,
in my view, correct- that even an
obvious illegality cannot simply be
ignored,
one
can
easly
understand why this is so. It
would be intolerable and lead to great uncertainity if an
administrator could simply ignore a decision
he or she had taken
because he or she
took
the subsequent view that the
decision
was
invalid
,
whether rightly or wrongly, whether
for
noble or ignoble reasons
.
The detriment that would be
caused
to the person in whose favour the
initial
decision
had been granted is obvious. Baxter says the
following
:
"
Indeed,
effective daily administration is
inconceivable without the continuous exercise and re-exercise of
statutory powers and the reversal
of decisions previously made
.
On the other hand
,
where the interest of private
individuals are affected
,
we
are entitled to rely upon decisions of public authorities and
intolerable uncertainty would result if these could be reversed
at
any moment. Thus, when an administrative official has made a decision
which bear directly upon an
individual
interest
,
it is said that the decision-maker has
discharged his office or is
functus
officio
.
I
therefore
conclude
that
Boya
could
not
validly
take
the
view
that
because
the
decision taken
by Diliza were
invalid,
he
could treat them as
nullities and formally revoke them
.
For
as
long
as
the
decisions
taken
by
Diliza
had
not
been
set
aside
on
review
,
they
existed in fact and had legal
consequences
.
As
Boya had no authority arising from the empowering
legislation
to
revoke
final
decisions
already
taken
,
much
less
in
the
absence of a hearing being granted to
Kirkland Investments
,
he
was
in
relation
to the decisions taken by Diliza in
her capacity as acting
superintendent-gener
,
aflunctus
officio
".
[58]
As a result
,
the court a quo erred by revoking its
own taken and standing order to proceed to hold the confiscation
enquiry and
in
the
face of the functus officio principle
,
make an about turn and refuse to do so
.
[59]
We
agree
with
the
Appellant's contention that the
court a quo
erred in
its
interpretation of the law and
application of or failure to apply the
terms
set out in section 310 (4
)
of the Criminal Procedure Act when it
held that the referral back to it by the High Court was effectively
limited to sentence
only.
[60]
We
further
agree with
the
Appellant's submission that the
provisions of
section
18
(4)
that
talk about another judicial officer proceeding to deal with the
confiscation enquiry
,
are not applicable here
.
[61]
The court a quo further erred in
separating the two functions of sentencing under POCA because such
process is dual in nature- the
holding of the confiscation enquiry
and then the sentence or if the trial court finds it in the interest
of justice
,
postponing
the holding of the enquiry and proceeding to sentence the offender
with a view to returning
to
it later
.
[62]
This court also concurs with the
Appellant's submission to the effect that the court erred in
misconstruing the circumstances in
which a confiscation enquiry is
located and best handled by not considering
,
among others
,
the effects of section 18 (6)
(a)
(i) which empowers the court to
refer to
evidence led
at
the
criminal trial
,
the
court
a quo being best placed practically and expediently to refer to and
rely on such evidence.
[63]
This court thus finds that the court a
quo
'
s
findings appealed against are not in the interest of justice
.
It erred in its understanding of the
nature and scope of the appeal court
'
s
findings and import of its instructions because same did not mean
that the trial court
is
precluded
or barred from holding the confiscation enquiry
.
[64]
In the circumstances the Appellant's
appeal stands to be
upheld
.
COSTS
[65]
This is a matter where costs should
follow the
cause
.
ORDER.
[66]
The following order is made
:
66.1
The appeal is
upheld
.
66.2
The order granted by the Learned
Magistrate G
.
C
Pretorius Mokopane Regional Court refusing to proceed with the
holding of a confiscation enquiry herein is set aside and replaced
with the following
Order
:
66.2.1
Mokopane
Regional court is hereby mandated and ordered to proceed w
i
th
the holding of a
confiscation
enquiry
herein following on the overturning of its previous order to
discharge or acquit the Respondent of all
charges
.
66.2.2
The Respondent is ordered to pay the
costs of appeal on a scale of between party and party
.
I agree
LEDWABAAJ
Attendances/ Appearances
For the Appellant: Adv
.
T.T
Mashalane
Instructed by
:
State
Attorney
For the
r
espondent:
Adv
.
N
.
C
Mathabatha Instructed by
:
JS
Talane Attorneys
.
Date of hearing
:
10 September 2021
Date of judgment
22 October 2021