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[2013] ZAFSHC 140
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S v Tsolo and Others (159/2013) [2013] ZAFSHC 140 (15 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 159/2013
In
the review between:-
THE
STATE
versus
TSOLO TSOLO
.........................................................................
Accused
1
BONIFAS SOURCE
..................................................................
Accused
2
THABISI TANKI
........................................................................
Accused
3
______________________________________________________
CORAM:
KRUGER, J
et
DE WET, AJ
______________________________________________________
JUDGMENT BY:
DE WET, AJ
______________________________________________________
DELIVERED ON:
15 AUGUST 2013
______________________________________________________
[1] Three accused were
charged on four counts. Count 1 being a charge of trespassing;
Count 2 a charge of
attempted theft;
Count 3 alleges a
contravention of the
Immigration Act 13 of 2002
; and
Count 4 a contravention
of section 18(2)(a) and (b) of the Riotous Assemblies Act 17 of 1959
(sic).
[2] Charge number 3 was
withdrawn by the Public Prosecutor against accused number 1 and 2.
[3] The accused were
legally represented and accused number 1 and 2 pleaded guilty to
charges 1, 2 and 4 and accused number 3 pleaded
guilty to all four
charges.
[4] The accused were
convicted by the Magistrate Welkom on statements in terms of section
112(2) of the Criminal Procedure Act 51
of 1977 (as amended) made by
each accused on the aforesaid charges.
[5] For some unknown
reason the Magistrate then proceeded to sentence accused 1 and 2 on
count 3 (which had been withdrawn by the
Public Prosecutor) and
failed to sentence accused number 3 on the same count.
[6] As far as the fourth
count is concerned the accused were charged and convicted of
contravening section 18(2)(a) and (b) of Act
17 of 1959. The Riotous
Assemblies Act is however Act 17 of 1956 and it would seem that
neither the Public Prosecutor nor the learned
Magistrate ever looked
at the Act itself not even after my learned brother Phalatsi AJ
enquired whether the Act referred to is
applicable.
[7] The Magistrate
concedes that the conviction of the accused on counts of conspiracy
and attempted theft are wrong “as both
crimes merge, splitting
therefore in this regard is ill placed”. In
Rex v Milne
and Erleigh (7)
1951 (1) SA 791
(AD) at p. 823 Centlivres CJ
remarked:
“
In practice…
the construction of that section is only of real importance in cases
where the incitee does not do the act which
he has been incited to
do.”
See also
S v Khoza
and Another
1973 (4) SA 23
(O) at 25.
[8] I have no doubt in my
mind that convicting the accused on the charge of attempted theft, as
well as on the charge of conspiring
to commit theft, cannot be upheld
as it will be a splitting of the charges as is correctly conceded by
the learned Magistrate.
[9] Accused number 3 was
convicted on count 3, but the Magistrate failed to sentence accused
number 3 on this count as he was apparently
wrongly under the
impression that accused number 3 was acquitted and therefore no
sentence was imposed. To at this stage impose
a fine on accused
number 3 will serve no purpose. We have carefully considered the
matter and decided to impose on accused number
3 the sentence below.
The sentence must, however, not be seen as a precedent for future
reference.
[10] 10.1 The sentence of
accused number 1 and 2 on count 3 is set aside.
10.2 On count 3 accused
number 3 is cautioned and discharged.
10.3 Accused 1, 2 and 3
are acquitted on count 4. Their conviction and sentences on count 4
are set aside.
________________
P.J.T. DE WET, AJ
I concur.
_____________
KRUGER, J
/spieterse