About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 84
|
|
S v Molati (396/2011) [2012] ZAFSHC 84 (3 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 396/2011
In
the review between:
THE
STATE
versus
TEBELLO
JOSEPH MOLATI
_____________________________________________________
CORAM:
LEKALE, J
et
MHLAMBI, AJ
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
3 MAY 2012
_____________________________________________________
[1] The accused, a
Lesotho National, was convicted of and sentenced for being in
possession of an unpolished diamond in contravention
of the Mining
Rights Act No. 20 of 1967 (MRA) by the Ficksburg Magistrates’
Court on 27 September 2011. He was sentenced
to a R2 000,00 fine or
12 (twelve) months imprisonment.
[2] The matter,
eventually, served before my colleague Naidoo AJ on automatic review
and the fact that the accused was charged and
convicted in terms of
MRA for being in possession of diamonds, caused her to direct the
following query to the trial magistrate:
“
1.
Whether the charge is correctly brought in terms of Act 20 of 1967.
Whether the conviction is,
therefore, good in law.
”
[3] The learned
magistrate has since responded conceding that:
“
Indeed in
my construction of the Mining Rights Act, diamond or uncut or
unpolished diamond is not included... It is the Diamonds
Act No 56 of
1986 that makes an offence to be in possession of unpolished or
polished diamonds as ‘mineral’ without
a licence.
”
[4] The trial magistrate,
further, concludes that both the conviction and the sentence are bad
in law for the MRA does not proscribe
the possession of polished or
unpolished diamonds without a licence.
[5] I am in respectful
agreement with the learned magistrate that the accused was wrongly
charged, convicted and sentenced. Both
the conviction and sentence,
therefore, fall to be set aside. In this regard it should be noted
that a crime in terms of section
18 read with section 82 of the
Diamonds Act is not a competent verdict on a charge brought in terms
of Mining Rights Act insofar
as the essential elements of a charge
involving diamonds are not included in the charge preferred against
the accused. (See generally
section 270
of the
Criminal Procedure Act
No. 51 of 1977
as amended.)
[6] I am satisfied from
the record that the accused paid the fine and was released
immediately after the sentence was imposed.
ORDER:
[7] In the result the
conviction and the sentence imposed are set aside.
[8] The amount of the
fine shall, therefore, be refunded to the accused in due course.
_____________
L.J. LEKALE, J
I concur.
________________
J.J. MHLAMBI, AJ
/sp