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[2013] ZAFSHC 192
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Mabote v S (297/13) [2013] ZAFSHC 192 (12 December 2013)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Special
Review Number : 297/13
In the
review between:-
K
J
MABOTE
........................................................................
Appellant
and
THE
STATE
.......................................................................
Respondent
CORAM:
VAN
ZYL, J
et
REINDERS,
AJ
JUDGMENT
BY:
VAN
ZYL, J
DELIVERED
ON:
12
DECEMBER 2013
[1]
This matter has been sent on special review in terms of
Section 57
(7) of the
Criminal Procedure Act, 51 of 1977
, from the Fouriesburg
Magistrate’s Court. In a letter attached to the special review,
Mr NJ Smith very eloquently set out
the following summary of the
relevant facts and circumstances:
“
2. Mr Mabote
the accused, paid admission of guilt to the amount of R1 200-00
(One Thousand Two Hundred Rand) after it was alleged
that he on
05/05/2013 in the district of Fouriesburg carried passengers for
reward contrary to the conditions of a Cross Border
Permit issued to
him, by overloading his vehicle. The admission of guilt was confirmed
on the 23
rd
May 2013 by a Magistrate deciding in the local court on the said
date, to wit Mr K J Jikeka.
3. Mr Mabote in his application dated
16/05/2013 alleges that he was not overloaded on the day in question.
He carried 15 passengers
plus a baby less than two years of age. His
load was in accordance with the passenger list which was verified by
the Cross Border
Road Transport Agency. He also alleges that loading
a baby was permissible in terms of the Road Transportation Act.
According to
Mr Mabote he had no other choice than to pay the fine
under protest in order to get his vehicle back, which was impounded.
4. Considering the above, it appears
that there is well-founded doubt concerning the guilt of the accused.
The Court is satisfied
that the accused have shown that were the
charge to go to trial, he would have a probable or arguable defence.
5. It is humbly
submitted that the conviction and sentence be set aside in order to
afford the State the opportunity to proceed
with the trial.”
[2]
The aforesaid facts and circumstances have been set out in an
affidavit deposed to by Mr Mabote in support of his application
for
special review. Having read the said contents of the affidavit,
together with the supporting documentation attached thereto,
I agree
with Mr Smith’s view that the accused has a probable and
arguable defence and that the conviction and sentence should
therefore be set aside.
[3]
Consequently the following order is made:
3.1
The conviction and sentence is set aside.
3.2 The matter is
referred back to the Court
a quo
for trial purposes should the
State decide to continue with the prosecution of the accused.
C.
VAN ZYL, J
I
concur:
C.
REINDERS, AJ