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[2015] ZAGPPHC 18
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S v Tsokela (A930/2014) [2015] ZAGPPHC 18 (8 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
A930/2014
DATE: 8 JANUARY
2015
CASE NO: 702/2014
High Court ref.
no. 06/2014
Magistrate case
No: MR 34/2014
In the matter
between:
THE STATE
and
TUMELO
TSOKELA
...................................................................................
ACCUSED
SPECIAL REVIEW
JUDGMENT
TEFFO, J:
[1] The accused was
convicted in the magistrate’s court, Groblersdal, of
contravening the provisions of section 82 of the
Third
General
Law Amendment Act no. 129 of 1993
in that he was found in
possession of car breaking/housebreaking implements. He was
legally represented throughout the
proceedings. He pleaded not
guilty and evidence was led to prove his guilt.
[2] He was then
sentenced to pay a fine of R6000-00 or serve six months imprisonment
half of which was suspended for
five years on condition that he
is not convicted of car breaking/housebreaking implements
committed during the period
of suspension.
[3] The magistrate
then conducted an enquiry in the terms of the
Firearms Control
Act 60 of 2000
into the competency of the accused to possess a
firearm and then declared the accused unfit to possess the
firearm.
[4] Before the
conviction of the accused, after the State and the defence had made
their submissions, the magistrate just said
without giving reasons:
"Accused
stand up you are a liar, you are found guilty as charged".
[5]
The matter came before me on special review in terms of
section
304(4)
of Act 51 of 1977 after a routine administrative process
discovered that the conviction of the accused was not in
accordance
with justice and that the order declaring the accused
unfit to possess a firearm was made in error as the enquiry did
not comply with the provisions of the
Firearms Control Act. 60
of
2000
.
[6] After receipt of
the review and the record of the proceedings herein together
with the reasons and comments from the magistrate
who presided
over the matter, I invited comments from the National Director
of Public Prosecutions on the issues raised
in the matter.
[7] The comments
were received and taken into account when writing this judgment.
[8] The accused’s
version of events was lacking, inconsistent, unreliable and not
credible as against the version put
by the State witnesses. It is
clear from the record that the accused was a poor witness. It is
my view that from the evidence
the magistrate cannot be faulted
for convicting the accused although labelling the accused a liar
was a bit above board. The
somehow capricious procedure adopted by
him after argument was not of such a nature as to vitiate the
proceedings. Doing so would
amount to a miscarriage of justice but in
this matter the evidence was clear and overwhelming against the
accused. The finding
of guilt on the accused on the charge
levelled against him was not a misdirection. The accused was
correctly convicted as
charged.
[9] It was irregular
for the magistrate to give judgment without reasons. However the
magistrate furnished reasons after being
requested by the defence to
do so. I find the reasons thereof well balanced and plausible for the
decision that he finally
arrived at. There is therefore no
reasons for me to interfere with the decision of the magistrate
in convicting the accused.
Having regard to the record and the
reasons so furnished, I am also of view that the sentence imposed was
appropriate
under the circumstances. I find that the conduct of
the magistrate in having to submit his reasons for judgment
after being
requested to do so by the defence, did not
constitute an irregularity so grave and gross to justify the
setting aside
of the proceedings.
[10] The provisions
of
section 103
read with schedule 2 of the
Firearms Control Act
60 of 2000
do not list the offence with which the accused was charged
and convicted as an offence that requires an enquiry into
his competency
to possess a firearm. The institution of such an
enquiry by the magistrate was therefore improper. I find that
there was no
basis for the magistrate to conduct the enquiry in
terms of
section 103(2)
of Act 60 of 2000 under the
circumstances.
[11] It is therefore
my considered view that the conviction and sentence of the accused
is in accordance with justice. It is
therefore confirmed.
[ 12] Consequently I
make the following order:
12.1 The conviction
and sentence of the accused is confirmed and the order in terms of
section 103(2) of Act 60 of 2000 is set aside.
MJ
TEFFO
JUDGE OF THE HIGH
COURT
(GAUTENG
DIVISION, PRETORIA)
I
agree
AML PHATUDI
JUDGE OF THE HIGH
COURT
(GAUTENG
DIVISION, PRETORIA)