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[2019] ZAFSHC 209
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S v Mosia (R148/2019, C1260/19) [2019] ZAFSHC 209 (18 October 2019)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review No:
R148/2019
Magistrates Court Case
No: C1260/19
In the review between:
THE STATE
versus
SABATA PETRUS
MOSIA
Accused
CORAM:
NAIDOO J
et
RAMLAL, AJ
JUDGMENT:
NAIDOO, J
DELIVERED
ON
:
18 OCTOBER 2019
REVIEW JUDGMENT
[1]
This matter was referred to us by the Magistrates Court,
Viljoenskroon in terms of section
303(4) of the Criminal Procedure
Act 51 of 1977 (the CPA), with the request for the court give
assistance and guidance. The accused
was charged with one count of
contravening section 102, read with other relevant provisions of the
Free State Public Transport
Act 4 of 2005 (the Free State Act), the
allegation being that he conveyed four adult passengers for reward,
without a Road Transportation
Permit to do so. The accused who was
legally represented, pleaded guilty and was found guilty. The court
a
quo
dealt with the matter in terms of section 112(1)(a) of the
CPA and sentenced him (loosely translated) as follows:
1.
Fined R500 or two months’
imprisonment
2.
In terms of section 89(2)(b) of Act 5 of 2009 the National Land
Transport Act, it
is ordered that the following vehicle must be
returned to the owner without payment of the amount to the MEC:
Vehicle: Volkswagen LMV
Registration Nr:
[….].
The
accused paid the fine of R500.00 on 24 July 2019.
[2]
The magistrate referred the matter to the High Court under cover of a
letter explaining
that the Traffic Department refused to return the
vehicle to the owner, and upon investigation, he found that he had
ordered the
return of the vehicle under section 89(2)(b) of the
National Land Transport Act 5 of 2009 (the National Transport Act).
The
magistrate further asserted that the order for the return
of the vehicle should have been made in terms of section 99 (2)(b) of
Free State Act 4 of 2005, as the accused was convicted in terms of
the latter Act. He further explained that the relevant provisions
of
the two statutes are the same and that the Viljoenskroon court often
receives matters where offenders are charged under one
or the other
of the two statutes. He asserted that he had made a mistake in not
ensuring that the correct statute was cited in
his order. The
Reviewing Judge before whom the matter was initially placed addressed
certain queries in respect of this matter
to the magistrate, to which
he duly responded.
[3]
Section relevant provisions of 99(2) of the Free State Act provides
as follows:
“
99 Impoundment
of vehicles
(1)
……
.
(2)
A
vehicle impounded under subsection (1) must be delivered to the head
of the depot contemplated in subsection (4), who must retain
the
vehicle in the depot and release it to the person concerned only-
(a)
when
the criminal charges against the person have been withdrawn or the
person has been acquitted of the offence charged; or
(b)
in
the case where the person is convicted of the offence charged, and
unless
the court has ordered otherwise, on payment to the head of the depot
of the amount determined by the MEC.”
The
provisions of section 87(2)(a) and (b) of the National Transport Act
are identical to section 99(2)(a) and (b) of the
Free State
Act, save that at the end of section 87(2)(b) of the National
Transport Act, the words “
which is an impoundment fee”
are added.
[4] What
is also clear is that the magistrate committed a further error in
citing section
89(2)(b) of the National Transport Act as authority
for the return of the vehicle. This is, no doubt, why one of the
queries addressed
to the magistrate by the initial reviewing judge
was why he relied on section 89(2)(b) of Act 5 of 2009. The latter
mentioned section
deals with the powers of authorised officers, and
the magistrate ought to have, in any event, referred to section 87 of
the National
Transport Act
[5] As
I indicated, the accused was legally represented, and has paid the
fine of R500.00.
The magistrate in this matter appears to have held
the rank of magistrate since 6 November 1987 (refer to the J4
attached to the
record), so that the sentence he imposed would not be
ordinarily reviewable in terms of section 302 of the CPA. Section
304(4)
of the CPA would be the appropriate section to invoke in this
case. In my view, it seems that a technical error was committed by
the magistrate, due to his failure to properly check the correctness
of the statute in terms of which he made the order for return
of the
vehicle, referred to above. This court is entitled to deal with the
matter as if it had been brought before us in terms
of section 303 of
the CPA. I am of the view that the interests of justice would be
served by substituting the reference in the
order with a reference to
the correct statute.
[7]
In the circumstances,
the following order is made:
7.1 The
conviction in this matter is confirmed.
7.2 The
sentence imposing a fine of R500.00 or two months’ imprisonment
is confirmed
7.3 The
order of the magistrate in respect of the return of the vehicle, is
set aside and replaced with the following:
“
In terms of
section 99(2)(b) of the Free State Public Transport Act, it is
ordered that the motor vehicle, a Volkswagen LMV, bearing
registration number [….], be returned to the person concerned,
without him/her being required to pay the fee determined
by the MEC”.
S.
NAIDOO, J
I agree.
A RAMLAL, AJ