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[2012] ZAFSHC 16
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S v Maneela and Another (411/2011) [2012] ZAFSHC 16 (16 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 411/2011
In the review between:-
THE STATE
and
THABO MANEELA
…............................................................
Accused
1
TSIETSI THIBELA
…..............................................................
Accused
2
_____________________________________________________
CORAM:
MOCUMIE, J
et
PHALATSI, AJ
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
16 FEBRUARY 2012
_____________________________________________________
[1] This is a review in
terms of Section 302 of the Criminal Procedure Act, 51 of 1977 (“the
CPA”).The two accused were
charged with Count 1; attempted
theft. In the alternative, they were charged with contravention of
Section 1(1)(a) or (b), read
with Section 1(1A), (2) and 2 of the
Trespass Act, 6 of 1959 (“the Act”), trespassing; and
further read with Section
250(1)(d) of the CPA. They were further
charged with Count 2; contravention of Section 49 of the Immigration
Act, 13 of 2002 (“the
Immigration Act&rdquo
;), in that they
unlawfully entered and remained in the country (Republic of South
Africa), without a valid passport or permit.
[2] Both accused pleaded
guilty on Count 2 and were convicted as charged. Evidence was led in
respect of Count 1. They were acquitted
on Count 1, but convicted on
the alternative charge of trespassing. They were sentenced as follows
(loosely translated):
“
The
alternative on Count 1 (trespassing), accused 1 was sentenced in
terms of
Section 276(1)(b)
of the CPA to 24 (twenty four) months
imprisonment. Accused 2 was sentenced to pay a fine of R2 000-00 (two
thousand rand) or 8
(eight) months imprisonment and a further
sentence of 4 months imprisonment, wholly suspended for four years,
on condition that
he is not found guilty of contravention of
Section
1
(1) of Act 6 of 1959, committed during the period of suspension.
On Count 2, accused 1 was sentenced to
pay a fine of R1 000-00 (one thousand rand) or 90 (ninety) days
imprisonment. Accused 2 was
sentenced to pay a fine of R400-00 (four
hundred rand) or 30 (thirty) days imprisonment.
In addition to these sentences, an
amount of R10 200-00 (ten thousand and two hundred rand), which was
found in the possession of
the accused during their arrest, was
declared forfeited to the State.”
[3] As indicated, when
this matter came to this Court on review, a query was directed to the
magistrate, to indicate on what basis
he declared the money found in
the possession of the accused, forfeited to the State, as the money
was not used during the commission
of the offences for which the
accused were convicted. The magistrate correctly conceded that the
money was not used during the
commission of the offences and thus s35
(1) of the CPA was not applicable in this case.
[4] Section 35(1) of the
CPA provides as follows:
“
A court
which convicts an accused of any offence may, without notice to any
person, declare-
(a) any weapon, instrument or other
article by means whereof the offence in question was committed or
which was used in the commission
of such offence; or
(b) if the conviction is in respect of
an offence referred to in Part 1 of Schedule 1, any vehicle,
container or other article which
was used for the purpose of or in
connection with the commission of the offence in question or for the
conveyance or removal of
the stolen property, and which was seized
under the provisions of this Act, forfeited to the State…”
[6] This is a material
irregularity which vitiated the proceedings before the magistrate and
which entitles this Court to interfere
with the sentence in so far as
the declaration in terms of s35(1) of the CPA is concerned.
[7] In the light of the
above, the sentences in respect of the alternative to count 1 and in
respect of count 2 imposed on the two
accused by the magistrate are
confirmed.
[8] The order of the
magistrate declaring the amount of R10 200-00 (ten thousand and two
hundred rand), which was found in the possession
of the two accused
during their arrest, forfeited to the State, is hereby set aside.
_________________
N.W. PHALATSI, AJ
I concur.
_______________
B.C. MOCUMIE, J
/sp