Summary of Judgment

1. Introduction

This matter concerned a special review conducted by the High Court in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The review was triggered after the conclusion of proceedings in the Regional Court, Odendaalsrus, when it was discovered that one of the statutory provisions under which the accused had been charged and convicted had been repealed.

The parties were the State as prosecutor and two accused persons, namely Tapiwe Sithole and Lovemore Mhlanga Majoni. The accused had appeared in the Regional Court on two counts, pleaded guilty to both, and were convicted and sentenced.

After conviction and sentence, the magistrate, prosecutor, and defence representative realised that the statutory basis for count 1—a contravention of section 143 of Act 20 of 1967 relating to unlawful possession of unwrought precious metal (gold)—was no longer in force, having been repealed. The magistrate then referred the matter to the High Court on review, requesting that the conviction and sentence on count 1 be set aside and that the accused be prosecuted afresh under the correct legislation (with reference to section 270 of the Criminal Procedure Act).

The general subject-matter of the dispute was therefore whether the proceedings and sentence on count 1 were in accordance with justice, given that the accused had been convicted under legislation that had been repealed, and what corrective relief the High Court could competently grant on review.

2. Material Facts

The accused appeared in the Regional Court at Odendaalsrus on two charges. Count 1 alleged unlawful possession of unwrought precious metal (gold) framed as a contravention of section 143 of Act 20 of 1967. Count 2 alleged illegal presence in the Republic of South Africa framed as a contravention of section 49(1)(a) of the Immigration Act 13 of 2002.

Both accused were legally represented and pleaded guilty to both counts. The plea procedure under section 112(2) of the Criminal Procedure Act 51 of 1977 was followed, and a written statement was handed in and read into the record.

Upon conviction, each accused was sentenced on count 1 to a fine of R10 000.00 or three years’ imprisonment, together with a further three years’ imprisonment wholly suspended for five years on conditions linked to contraventions of the same statutory provision. On count 2, each accused received three months’ imprisonment wholly suspended for five years, subject to a condition relating to further contraventions of the Immigration Act.

Only after convictions and sentences had been imposed did the court and the parties realise that Act 20 of 1967 (the basis for count 1) had been repealed by section 24(1) of Act 37 of 2005. The magistrate then referred the matter to the High Court, asking that the conviction and sentence on count 1 be set aside and that the accused be correctly prosecuted de novo.

The High Court treated the repeal of the statute underpinning count 1 as determinative. No material factual disputes were identified in the judgment; the relevant facts for the review turned on the procedural history and the legal status of the legislation under which count 1 had been prosecuted.

3. Legal Issues

The central legal question was whether the proceedings, conviction, and sentence on count 1 were not in accordance with justice for purposes of section 304(4) of the Criminal Procedure Act 51 of 1977, given that the accused had been charged and convicted under legislation that had been repealed, meaning the charged offence did not exist in law.

A further issue was whether, having set aside the conviction and sentence, the High Court could (or should) direct that the accused be re-prosecuted under the correct, current legislation, and whether section 270 of the Criminal Procedure Act provided a basis for such an order.

The dispute was primarily one of law, with a direct application of legal principle to undisputed procedural facts—namely the fact of repeal and the resulting legal invalidity of the conviction on count 1—rather than any contest over evidential facts.

4. Court’s Reasoning

The High Court approached the matter through the corrective jurisdiction conferred by section 304(4) of the Criminal Procedure Act 51 of 1977, which empowers the court to intervene where it is brought to its attention that proceedings in which sentence was imposed were not in accordance with justice.

The court reasoned that the sentence imposed on count 1 could not be in accordance with justice because the accused had been convicted of an offence that no longer existed in law, the enabling statute having been repealed. On this basis, the conviction and sentence on count 1 could not stand and fell within the court’s remedial powers on review.

The court accepted that setting aside the conviction and sentence on count 1 was within its authority. However, it declined the magistrate’s request to make an order directing that the charges be reinstated and that the accused be prosecuted afresh under the correct legislation. The court emphasised that it could not be prescriptive to the prosecution, since the prosecution is dominus litis, and because the court must respect the doctrine of separation of powers.

In addressing the magistrate’s reference to section 270 of the Criminal Procedure Act, the High Court stated that this provision was not applicable because it relates to a “completely different issue” from the problem presented in this matter. The judgment therefore confined the relief to setting aside the defective conviction and sentence, without purporting to compel further prosecutorial steps.

5. Outcome and Relief

The High Court set aside the conviction and sentence on count 1 for both accused, namely the conviction purportedly under section 143(3) of Act 20 of 1967 and the associated sentence comprising the fine or imprisonment and the further suspended term.

The court did not grant an order compelling fresh prosecution under different legislation and expressly declined to do so on the basis that such direction would improperly intrude upon prosecutorial discretion.

No express order as to costs appears from the judgment.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 112(2), 270, 304(4)).

Immigration Act 13 of 2002 (section 49(1)(a); reference also made to section 49(1)(b) in the suspended sentence condition).

Act 20 of 1967 (section 143; the judgment also refers to section 143(3)).

Act 37 of 2005 (section 24(1), as the repealing provision in relation to Act 20 of 1967).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the conviction and sentence imposed on count 1 were not in accordance with justice because the accused had been charged and convicted under a statutory provision contained in legislation that had been repealed, with the result that the charged offence did not exist in law.

It further held that while it was competent to set aside the conviction and sentence on review, it was not competent or appropriate for the court to direct the prosecuting authority to reinstate charges or prosecute the accused de novo under the correct statute, as the prosecution is dominus litis and separation of powers considerations apply.

LEGAL PRINCIPLES

Proceedings resulting in conviction and sentence are not in accordance with justice, and are liable to be set aside on review under section 304(4) of the Criminal Procedure Act 51 of 1977, where the conviction is founded on an offence that does not exist in law, including where the enabling statutory provision has been repealed.

A reviewing court may correct an injustice by setting aside an invalid conviction and sentence, but it should not issue prescriptive directions compelling the prosecuting authority to prosecute under alternative legislation, because prosecutorial decision-making lies with the State as dominus litis, and judicial restraint is required under the separation of powers.

Section 270 of the Criminal Procedure Act was treated as inapplicable to the remedial question presented in this matter, as it concerns a different legal issue from the consequences of a conviction under repealed legislation.