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South Africa: North Gauteng High Court, Pretoria
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[2013] ZAGPPHC 470
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S v K T (255/2013) [2013] ZAGPPHC 470 (15 November 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE
NO: A935/12
DATE:
1 NOVEMBER 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of the Corruption Act, Act 94 of 1992, repealed by The Prevention of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the repealed Act, accordingly I am of the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 MHE
JUDGE OF THE HIGH
COURT
I agree
JORDAAN E
JUDGE OF THE HIGH
COURT