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[2013] ZAGPPHC 322
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S v Legong (A893/2013) [2013] ZAGPPHC 322 (1 November 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: A935/12
DATE:
01/11/2013
In
the matter between:
THE
STATE
and
ASEITSIWE
JOHANNES LEGONG
JUDGMENT
Ismail
J:
[1]
This matter was referred to this court by means of a special review
at the request of the presiding magistrate.
[2]
The magistrate in the letter to the reviewing judge stated the
following:
“
During
the sentence procedure the magistrate realized that the accused was
incorrectly charged and convicted of the provisions of
section 1 (a)
of the Corruption Act, Act 94 of 1992, repealed by The Prevention of
Combating of Corrupt Activities Act 12 of 2004...
...as
the charge on which the accused was convicted differs drastically
from The Prevention of Combating of Corrupt Activities Act
12 of 2004
that will render the application of
section 270
of the
Criminal
Procedure Act 51 of 1977
impossible.”
[3]
Initially the accused pleaded guilty to the contravention of
section
1(1)
(a) read with section 3 of the Corruption Act 94 of 1992.
[4]
After questioning the accused in terms of
section 112
of the
Criminal
Procedure Act (CPA
) the magistrate altered the plea to not guilty in
terms of
section 113
of the CPA.
[5]
Evidence was led of two policemen who testified that the accused left
money on the bonnet of his car, as the police officer
took out the
book to give him a traffic violation ticket. He was told “do
you know what you are doing is illegal” the
accused was
consequently arrested and charged.
[6]
Pursuant to the traffic officers testifying on behalf of the state
and the accused also giving evidence during the trial, the
accused
was convicted of the charge.
[7]
The matter was then sent on review with the request as set out in
paragraph [2] above.
[8]
It is clear that the accused was charged and found guilty of an
offence in terms of the repealed Act, accordingly I am of the
view
that the conviction should be set aside as he cannot be sentenced in
terms of that Act.
[9]
In the circumstances I make the following order:
[9.1]
the conviction is set aside;
[9.2]
the accused may be charged de novo in terms of the current Act;
[9.3]
the trial should proceed before a different magistrate than the one
who presided during a final trial.
ISMAIL
MTHE
JUDGE
OF THE HIGH COURT
I
agree
JORDAAN
E
JUDGE
OF THE HIGH COURT