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[2020] ZALMPPHC 79
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S v Makola (43/2020; RCN 32/19) [2020] ZALMPPHC 79 (9 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
REV
NO: 43/2020
NEBO:
RCN 32/19
09/09/2020
In
the matter between
THE
STATE
AND
MOTSEDI
BUSHY MAKOLA
ACCUSED
JUDGMENT
KGANYAGO
J.
[1]
The accused was charged in
the
Regional Court
sitting at
Nebo with the
two
counts
of
intimidation
in
contravention of
section
1(1)(b)
read with section 2 and 3 of
Intimidation Act 72 of 1982
, two counts of pointing of fire arm, an
antique firearm or airgun in contravention of section
120(6)(a)
read
with
section
1
,
000
000">
103,
section
121
and
also
read with schedule 4 and section 151 of
the Fire Arms Control Act 60 of 2000; and one count of
crimen
injuria.
[2]
The
accused
had pleaded
not
guilty to all the counts he is facing. He was convicted on 30
September 2019 on two counts of intimidation and one count of
crimen
injuria.
He
was found not guilty and discharged on
two counts of pointing of a fire
arm.
[3]
After being convicted of
the
three
counts, the
matter was postponed for
pre-sentencing
reports. On
the
day
on
which
the
defence
and
the
State were supposed to address the trial court on both mitigating and
aggravating factors, the
defence submitted that
the
charge
(two counts of intimidation) on which the accused was convicted was
declared invalid by the Constitutional Court in the matter
of
Moyo
and Another v The Minister of Police and Others CC174/208,
CCT178/2018 [2019) ZACC 40;
2020 (1) BCLR 91(CC)
(22 October 2019).
[4]
The accused was
convicted before the Constitutional Court had declared
section 1(1)
(b) of the
Intimidation Act to
be unconstitutional and invalid. The
matter has been brought before this court on special review in terms
of
section 304(4)
of Act 51 of 1977 seeking directions whether it
will be in accordance with the administration of justice for it to
proceed sentencing
the accused on the two counts of intimidation.
[5]
I have requested the opinion of the
Deputy Director of Public Prosecutions (the DOPP). They have
furnished me with a helpful opinion
and I am indebted to them. The
DOPP is of the opinion that the sentencing of the accused on two
counts of intimidation will not
be in accordance with the
administration of justice. The DOPP has submitted that the conviction
on the two counts intimidation
ought to be set aside and the matter
be remitted to the trial court to proceed with the sentencing
proceedings on the charge of
crimen
injuria.
[6]
It is not in dispute that the judgment
in the Moyo case was handed down after the accused was convicted of
the two counts of intimidation.
The question to be determined is
whether the order of invalidity in the Mayo's case applies
retrospectively to pending
trials
or appeals.
[7]
The general rule is that there is a
presumption against the retrospective operation of a provision,
unless it
is
clearly stated that the provision will
operate retrospectively. The order of invalidity in Moyo's case read
as follows:
"4.
The order of invalidity is retrospective to the extent that it
operates in trials or pending appeals based on contravention
of
section 1(1) (b) of
Intimidation Act 72 of 1982
where the right of
appeal has not yet been exhausted".
[8]
In paragraph 79 of the Moyo's case the
Constitutional Court has held that the order of invalidity will
operate immediately on hand
down of the judgment. The
declaration of invalidity was not suspended to afford the Legislature
to correct the defect. It is clear
that the order applies
retrospectively to pending trials or appeals where right of appeal
has not yet been
exhausted.
[9]
The accused has only been convicted but
not yet sentenced. His trial has
not
yet been finalized and
he
has not even reached a
stage where he can exercise his right of
appeal. He is therefore covered by the declaration of invalidity of
section 1(1)
(b) of the
Intimidation Act by
the Constitutional Court
in the Moyo case. I therefore agree with the DOPP that it will not be
in accordance with administration
of justice for the trial court to
continue with the sentencing proceedings in
respect of
the
two
counts of contravention of
section 1(1)
(b) of Act 72 of 1982.
[10]
In the result
I
make the
following order:
10.1
The conviction in respect of two counts
of contravention of section 1(1)
(b)
of Act 72 of 1982 are reviewed and set aside.
10.2
The matter is remitted to the trial
court to proceed with the sentencings proceedings on the count of
crimen
injura.
MF
KGANYAGO J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
agree
MV SEMENYA J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE