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[2019] ZAFSHC 38
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S v Mawhdlazi (R42/2018) [2019] ZAFSHC 38 (25 April 2019)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
number: R42/2018
In
the matter between:
THE
STATE
And
BONGANI MAWHLDLAZI
CORAM:
REINDERS,
J ET CHESIWE, J
JUDGMENT
BY:
CHESIWE,
J
DELIVERED
ON:
25
APRIL 2019
[1]
This matter has been referred to the High Court for special review in
terms of Section 304(4) of the
Criminal Procedure Act 51 OF 1977 (the
CPA). The Acting Senior Magistrate for Bloemfontein pointed out
that as a result of
doing systematic checks she detected
irregularities in respect of the conviction and sentencing of the
accused.
[2]
The accused was arrested on or about 17 June 2018 and was allegedly
to have been found in unlawful possession of
eight (8) cellular
telephones to which there was a reasonable suspicion that the goods
had been stolen and the accused was unable
to give a satisfactory
account of these cell phones. On 2 August 2018 the accused was
before court and was represented by
Mr Koloti. The accused
pleaded guilty and was convicted and sentence to a fined of R2000 or
four months imprisonment.
[3]
The learned Acting Senior Magistrate in the memorandum attached the
transcribed record pointed out the
following: The accused was charged
in terms of the Stock Theft Act 57 of 1959 (the STA) and taking
cognisance of the fact that
cell phones are not goods as defined in
the Stock Theft Act. The learned magistrate further pointed out
that the accused
tried to disclose a defence and that was ignored by
the trial court. With regard to sentencing the Presiding
Officer made
unnecessary and improper comments. The Acting
Senior Magistrate submitted that the conviction and sentence of the
accused
be set aside as the proceedings were not in accordance with
justice.
[3]
The Presiding Magistrate concedes in her reasons for review that she
inadvertently admitted the cell
phones as stock in terms of the STA.
In terms of the definitions in section 1 of the STA, stock is
defined as any horse,
mule, ass, bull, cow, ox, heifer, calf, sheep,
goat, pig, poultry, domesticated ostrich, domesticated game or the
carcase or portion
of carcase of any such stock.
[4]
In respect of sentencing the accused the Presiding Officer simply
ascertain how much bail was paid and
made and order that the money
for the bail can be taken to pay the fine. (Page 7 lines 15 –21
of the record). The learned
magistrate made an order in terms of
section 103(2)
of the
Firearms Control Act 60 of 2000
that the
accused was fit to possess a firearm without conducting any
substantial enquiry to determine if accused was fit to possess
a
firearm. She practically put a firearm into the hands of
someone who had no respects of the law.
[5]
Accordingly, the concerns of the learned Acting Senior Magistrate are
obviously well founded and correct. Also
taking into
consideration that the Presiding Officered conceded to the error
committed by her. I accordingly concur with the Acting
Senior
Magistrate that the conviction and sentence be set aside.
[6]
In view of the aforesaid the order of the trial court on conviction
and sentence is set aside and the matter remitted
to the learned
magistrate.
S.
CHESIWE, J
I
CONCUR
C.
REINDERS, J