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[2014] ZAGPPHC 192
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Sizani v S (A530/2012) [2014] ZAGPPHC 192 (5 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(REPUBLIC OF
SOUTH AFRICA)
PRETORIA
CASE
NO: A530/2012
DATE:
05 MARCH 2014
In the matter
between:
KHALIPHILE
RICHARD SIZANI
...........................................
APPELLANT
And
THE
STATE
...........................................................................
RESPONDENT
JUDGMENT
MSIMEKI J:
[1] This appeal is
directed against the Appellant’s conviction and sentence by
Magistrate Chauke who sat in the district court
in Pretoria on 31
January 2012.
[2] The Appellant, a
54 year old male, was charged with the contravention of
Section 31
(1) of the
Maintenance Act No.99 of 1998
in that he, as the state
alleged, had failed to comply with the maintenance order of 10 July
2009.
[3] The Appellant
after conviction, was sentenced as follows:
“twelve (12)
months imprisonment, wholly suspended for five (5) years on condition
accused is not convicted for contravening
Section 31
(1) Act 99 of
1998 committed during the period (sic) suspension and further that
the accused pay the amount of R115 360-00 in four
(4) instalments
starting from end of February – Last instalment end of May
2012.”
[4] The Appellant
was refused leave to appeal against the conviction and sentence. This
court, however, granted such leave on 15
June 2012 pursuant to the
Petition which the Appellant had launched. The Appellant then
appealed against the conviction and sentence.
[5] The Appellant
gave 36 grounds of appeal which I shall not deal with for the reasons
that I shall later give in this judgment.
[6] The Appellant,
in the meantime, launched a number of applications which I also deem
unnecessary to deal with. The parties in
those applications were
inter alia, magistrate Chauke, the maintenance officer, the National
Director of Public Prosecutions, Nohle
Sizani and the clerk of the
court.
[7] At the outset of
the hearing in this appeal, Mr Raletjena, on behalf of the
Respondent, submitted that the crisp issue which
had needed attention
at that stage, the determination of which, according to him, could
even determine the outcome of the appeal,
was whether the maintenance
order of 10 July 2009 ( the order in issue) which the Appellant was
alleged to have contravened ever
existed. The submission had merit.
The order appears in volume 6 of the Provisional Appeal Record at
514A-77 to 514 A-78. The order
has not been signed by the magistrate
who dealt with the matter.
[8] During argument,
before it was established whether or not the order in issue was
valid, Mr Raletjena and Mr Meyer, counsel for
the Respondent and the
Appellant respectfully, conceded that:
1. The order had not
been signed by the magistrate.
2. The order, as a
result, was of no force and effect as it did not exist.
3. There was,
therefore, no basis for charging the Appellant with the contravention
as alleged.
4. The appeal
against conviction and sentence had to succeed.
5. The conditions
which magistrate Chauke had imposed would disappear with the setting
aside of the conviction and the sentence.
Their concessions,
in my view, were correctly made.
[9] Mr Meyer,
however, submitted that the Appellant’s appeal had been twofold
in that it had combined the criminal and civil
elements.
Mr Raletjene
strongly disagreed. His disagreement carried some substance.
[10] It is evident
that the parties in the applications I referred to above are not
parties in this appeal. The appeal has been
set down for hearing by
the Director of Public Prosecutions not as a civil appeal. The chief
clerk to the Director of Public Prosecutions
in his notification
dated 21 November 2013, informed the Appellant’s legal
representatives of the date on which the appeal
would be argued and
what needed to be done. The notification relates only to the criminal
appeal. In need to pause and add that
a civil appeal is set down for
argument differently. Different Rules apply in criminal and civil
appeals. Mr Raletjena further
submitted that the appeal was criminal
in nature. To bolster his submission, Mr Raletjena reminded all that
even the Appellant
himself had conceded that this is a criminal
matter. This appears in paragraphs 13 and 14 of the Respondent’s
Heads of Argument.
[11] This, indeed,
is a criminal matter which magistrate Chauke dealt with. This also is
a criminal appeal. The upholding of the
appeal against conviction and
sentence does away with the conditions which the magistrate imposed
when sentencing the Appellant.
The removal of that which worried the
Appellant in its entirety renders a civil appeal unnecessary. The
issue of costs can be dealt
with separately as there is no room for
it in this criminal appeal.
[12] What is said
above has made it unnecessary to consider any other aspect in this
matter. Indeed, Mr Raletjena’s submission
at the very outset
had merit.
[13] The appeal
against conviction and sentence, in the absence of the basis for
charging and convicting the Appellant, should succeed.
ORDER
[14]
1. The appeal
against conviction and sentence is upheld.
2. The conviction
and sentence are set aside.
3. The court a quo‘s
verdict is replaced with the following verdict
“the accused
is found not guilty and discharged”.
M.W MSIMEKI
JUDGE OF THE
NORTH GAUTENG HIGH COURT, PRETORIA
I agree
T.A.N MAKHUBELE
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT, PRETORIA
COUNSEL FOR THE
APPLICANT: Adv. MEYER
INSTRUCTED
BY: TSABANE MALOBA INC.
COUNSEL FOR THE
RESPONDENT: Adv. M A RALETJENA
INSTRUCTED
BY:
DATE OF HEARING:
24 FEBRUARY 2014
DATE OF JUDGMENT:
05 MARCH 2014