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[2018] ZAFSHC 38
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S v Sithole and Others (R33/2018) [2018] ZAFSHC 38 (15 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Review
number: R33/2018
In
the matter between:
THE
STATE
and
JOHN SITHOLE
SHIVIKO JOHANNES
MAKHUBELA
JUSTICE BENDANI
CORAM:
REINDERS, J et LOUBSER, J
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
15 MARCH 2018
JUDGEMENT
ON SPECIAL REVIEW
[1] This matter came
before me as a Special Review in terms of the provisions of Section
304(4) of the Criminal Procedure Act.
All three accused pleaded
guilty to, and were convicted of, a contravention of Section 143(3)
of the Mining Rights Act 20 of 1967
in the Magistrates Court of
Phuthaditjhaba, in that they were found in possession of unwrought
precious metal, namely gold dust.
[2]
In a note submitted in the request for a Special Review, the
presiding magistrate remarked that it transpired after the conviction
of accused, but before they were sentenced, that the charge was
brought under the wrong legislation, with the result that they
were
also convicted under the wrong legislation.
[3]
I respectfully agree with the learned Magistrate. The
legislation under which the accused were convicted, was repealed
by
Section 24(1)
of the
Precious Metals Act 37 of 2005
, which Act is
presently the applicable legislation prohibiting the possession of
unwrought precious metal under certain circumstances,
and more
particularly Section 4 thereof. The conviction as it now
stands, must therefore be set aside.
[4]
All three the accused have pleaded guilty to the charge under the
repealed legislation, and statements in terms of Section 112(2)
of
the Criminal Procedure Act were handed in on their behalf. In
such circumstances, the convictions cannot be substituted
with
convictions under the legislation now in force.
I
therefore make the following orders:
1.
The
convictions of all three accused in terms of Section 143(3) of
Act 20 of 1967 are set aside.
2.
The
matter is remitted to the Magistrate Court, Phuthaditjhaba, for
the accused to plead
de
novo
before
a different magistrate to charges of contravening Section 4 of Act 37
of 2005.
_______________
P.
J. LOUBSER, J
I
concur:
_______________
C. REINDERS, J
/db