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[2012] ZAFSHC 212
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S v Mayona and Another (181/2012, 182/2012) [2012] ZAFSHC 212 (15 November 2012)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 181/2012
182/2012
In the special review
between
THE STATE
and
ERIC
ALEX MAYONA
.
............................................................................
First
Accused
GOODMAN
DYANTYI
........................................................................
Second
Accused
CORAM:
VAN DER MERWE
et
MOCUMIE, JJ
DELIVERED
ON:
15 NOVEMBER 2012
SPECIAL
REVIEW JUDGMENT
VAN DER MERWE et
MOCUMIE . JJ
[1] This is a special
review from the Magistrate Court, Welkom, in respect of case A633/12
and case A1155/12. This judgment will
deal with both cases
simultaneously; as the issues raised are the same. •
[2]
The Senior magistrate responsible for judicial oversight, Mr S
Ferreira, apparently came across the two matters and was of the
view
that both contravention of section 1(1 )(a) or (b) of the Trespassing
Act, Act 6 of 1959
(“the
Trespassing Act”)
and
contravention of regulation 3.1.1 of the Mine Health and Safety Act,
Act 29 of 1996
(“the Mine
Health and Safety Act”)
“
are
statutory offences with basically the same elements of the offence”.
He was also of the opinion that
charging the accused persons with both counts tantamount to a
duplication of charges and inevitably
duplication of convictions.
[3]
The accused in A633/2012 was charged and convicted of contravention
of section 1(1 )(a) of the Trespassing Act, being on premises
without
authorisation of the owner, commonly known as “
trespassing”
and contravention of regulation
3.1.1 of the Mine Health and Safety Act, being underground in a mine
where machinery has been erected
without authorised admittance.
[4] The accused in
A1155/12 was also charged and convicted of contravening section 1(1
)(a) of the Trespassing Act and regulation
3.1.1 of the Mine Health
and Safety Act as in the case of the accused in case A633/2012.
[5] Section 1 (a) and (b)
of the Trespassing Act:
(1)
Any person who without the permission-
(a)
of the lawful occupier of any land or any building or part of a
building; or
(b)
of the owner or person in charge of any land or any building or part
of a building that is not lawfully occupied by any person,
enters
or is upon such land or enters or is in such building or part of a
building, shall be guilty of an offence unless he has
lawful reason
to enter or be upon such land or enter or be in such building or part
of a building.”
[6] Regulation 3.1.1 of
the Mine Health and Safety Act provides:
“
3.1.1
No unauthorised person shall enter a mine or works or any shaft or
place or building where machinery has been erected."
[7]
We have since sought the opinion of the Director of Public
Prosecutions
(“the DPP”)
Free State, in this regard. The opinion is well set out. Both Adv
Hiemstra and Adv BG Claasens of the DPP, Free State, Bloemfontein
office must be commended for their sterling research work. We can
only do justice by quoting it as is.
[8] The opinion reads as
follows:
“
The
above-mentioned matters were sent on special review by the Acting
Senior Magistrate of Welkom, Mr S Ferreira.
Two
questions were raised:
1.
Whether Regulation 3.1.1 of the Mine
Health and Safety
Act,
Act 29 of 1996 is still in force.
1.1.
A brief history of the Act and
Regulations is required to respond to this question. -
1.1.1.
Over the years various pieces of legislation have been enacted to
regulate the mining industry. These provisions, whether
enacted in
national legislation or in regulations, dealt with mining rights,
health and safety, the specific minerals mined, and
so forth.
1.1.2.
The most recent and relevant Acts are the Mineral Act 50 of 1991, the
Mine Health and Safety Act 29 of 1996
, and the
Mineral and Petroleum
Resources Development Act 28 of 2002
, as well as the Regulations
enacted in terms thereof.
1.1.3.
The particular regulation,
regulation 3.1.1
was enacted under the
Mine and Works Act 27 of 1956. The regulations were promulgated in
Government Notice 992 in Government Gazette
2741 of 26 June 1970.
(Hereinafter referred to as ‘the 1970 regulations’.)
1.1.4.
On January 1992 the Minerals Act 50 of 1991 commenced. In terms of
Section 68(1) and Schedule to this Act, the Mines and
Works Act of
1956, in terms of which the relevant regulation was promulgated, was
repealed as a whole (except for certain non-relevant
definitions).
1.1.5.
However, Section 68(2) of the Minerals Act stated the following in
respect of the Regulations promulgated in terms of the
Mine and Works
Act:
‘
(2)
Any Regulation made under the Mines and Works Act 1956 (Act 21 of
1956), and in force immediately prior to the commencement
of this
Act, shall,
notwithstanding
the repeal
of
the first- mentioned by subsection (1),
remain
in force
until
amended or repealed
under
section 63, and any rule, notice, order, instruction, prohibition,
authorization, permission, consent, exemption, certificate
or
document promulgated, issued, given or granted and any other steps
taken in terms of any such regulation prior to the commencement
of
this Act, shall likewise remain in force’. (Own emphasis)
The
1970 regulations thus remained in force.
1.1.6.
Subsequently, on 15 January 1997, the
Mine Health and Safety Act, Act
29 of 1996 came into operation.
1.1.7.
In terms of Item 4 of Schedule 4 of Act 29 of 1996 under the heading
Transitional Provisions’ the following is stated
in respect of
regulations:
‘
4.
Any regulation made
or
deemed to be made
under
the Minerals Act that relates to health and safety issues that can be
regulated under this Act, may be amended under this
Act and
remains
in force
until
repealed under this Act. ’ (Own emphasis)
(Item
4 was later substituted by Section 46 of Act 72 of 1997. The
substitution had no effect on the issue in question as the wording
remained virtually the same. )
The
reference to ‘deemed to be made’ was necessary because a
large volume of existing regulations, including the 1970
regulations
were in fact not made under this Act, but under its predecessors.
This provision paved the way for the retention of
the 1970
regulations despite amendments to various enactments which followed,
which included the repeal of the Minerals Act of
1991.
1.1.8.
In 2008,
Section 34
of the
Mine Health and Safety Amendment Act 74 of
2008
amended the
Mine Health and Safety Act by
the substitution of
the expression ‘
Mineral and
Petroleum Resources Development Act’
for
the expression ‘
Minerals
Act’
wherever it occurs in the
Act. In the definitions of the Act, both ‘Act’ and
‘Regulations’ are defined
and by virtue of the
definitions clearly includes the 1970 regulations. 'The effect
thereof is once again the confirmation and
continued validity of the
1970 regulations.
1.1.9.
Under Schedule 1 of The
Mineral and Petroleum Resources Development
Act of 2002
, the whole Minerals Act 50 of 1991 (except for the
definitions of ‘precious metal’ and ‘unwrought
precious metal
in Section 1 and Chapter XVI of the Mining Rights Act,
1967 and except the definition of ‘Sunday’ in and Section
9
of the Mine and Works Act, 1956) was repealed.
1.1.10.
The 1970 Regulations do not appear to be expressly included or
excluded in the
Mineral and Petroleum Resources Development Act.
However
, if one has regard to Item 4 of Schedule 4 referred to above,
it includes regulations
deemed
to have been made under this Act. See paragraphs 2.1.7 and 2.1.8
above.
There
is therefore no reason to conclude that the 1970 regulations have
been repealed or lapsed by virtue of the various amendments
of the
legislation.
1.2.
There appears to be various Regulations under the
Mine Health and
Safety Act, which
include the 1970 Regulations (which* is referred to
as the
Mine Health and Safety Regulations (Minerals
Act)) and further
Mine Health and Safety Regulations in
terms of GN 93 in GG 17725 of
15 January 1997.
1.3.
In terms of Item 4, it was clearly the intention of the legislature
to retain the 1970 regulations in operation until expressly
repealed,
especially if one takes into account the following:
On
2 July 2002 in GN 905 in GG 23584 the then Minister of Minerals and
Energy Phumzile Mlambo- Nguka, in terms of Item 4 of Schedule
4 of
the
Mine Health and Safety Act, 1996
repealed various regulations as
per the schedule published in that notice. These included
some
of the 1970 Regulations, but the major part of it remained
unaffected. Regulation was not one of these repealed Regulations and
thus remains in force in terms of Item 4 of Schedule 4 of the
Mine
Health and Safety Act, Act
29 of 1996.
In
my view, the fact that the Minister deemed it necessary to expressly
repeal part of the regulations is a clear indication that
the
regulations were still regarded as operative and that those not
repealed, remains effective.
Any
other interpretation would have the effect that a vacuum
would be created in an industry where
it is imperative for it to be
closely regulated. Such a vacuum
would have far reaching and
possibly
devastating consequences, including significant loss of
life due to the absence of any
regulations dealing with safety
and
health issues and mining standards
.
(Own underlining)
While
it would have been preferable to have the continued existence of the
regulations clearly and expressly provided for in the
later
legislation, the fact that its history is somewhat difficult to
unravel cannot lead to the conclusion that they are no longer
in
operation.
2.
The second guery is whether
Regulation 3.1.1
supra
and
Section
1(1)(a)or(b) of the Trespassing Act, Act 6 of 1959 will
not lead to a duplication of
conviction.
3.1.
Regulation 3.1.1 reads as follows:
Chapter
3
GENERAL
PROVISIONS
'
No unauthorised admittance
'3.
1.1
No unauthorised person shall enter a mine or works or any shaft or
place or building where machinery has been erected. ’
3.2.
Section 1(1 )(a) or (b) of the
Trespassing
Act
reads as follows:
‘
(1)
Any person who without permission -
(a)
of the lawful occupier of any iand or any building or part of a
building; or
(b)
of the owner or person in charge of any land or any building or part
of a building that is not lawfully occupied by any person,
enters or
is upon such land or enters or is in such building or part of a
building, shall be guilty of an offence unless he has
lawful reason
to enter or be upon such land or enter or be in such building or part
of a building.
3.3.
If one looks superficially at the basic wording of the regulation in
comparison to the section, then certain words appear that
would give
the superficial impression that the prohibition is the same, words
such as: - ‘person’ (may not) ‘enter’
(a
certain area) ‘land’ ‘building’ ‘mine’
‘works’ ‘shaft’ ‘place’.
3.4.
However one cannot just compare individual words. The legislation
must be regarded as a whole, including the purpose and reason
for
existence of such legislation.
3.5.
The mining industry is a different dynamic than the general
prohibition against trespassing, regulated by a unique set of Acts
and Regulations which are designed with a particular and specific
purpose in mind. One of the most important pieces of legislation
is
the
Mine Health and Safety Act and
accompanying regulations.
3.6.
The Health and Safety issues of a mine are of vital importance if one
takes into account the dangerous and hazardous circumstances
in which
a mine functions, especially in respect of underground mining. The
frequent reports of deaths in the mining industry and
the occasional
prominence given to fatalities suffered in mines attest to this fact.
3.7.
The various Acts and regulations ensure that no mining is done
without a permit, but more so that it is done in a safe manner.
The
extensive Mine Health and Safety regulations regulate responsibility,
safety, protection, machinery, mining standards, competencies
and so
forth.
3.8.The
essence of this Act and regulations is the Health and Safety of the
Employer and employees of the mining industry. However,
in order to
be effective, the Act is applicable to employers, employees and
non-employees alike. To interpret it otherwise will
mean that a mine
employee may for example not enter into a work area or smoke
underground, bat that a non-employee may do so with
impunity,
including smoking in an area with a high methane gas risk.
3.9.
Regulation 3.1.1 refers to ‘no unauthorised person’. This
can include employees as well as non-employees. An employee
may be
allowed on the mine premises, but he or she may not be authorised to
enter an area where machinery is erected.
3.10.
in
section 102
of the
Mine Health and Safety Act, the
definition of
‘machinery’ is as follows:
‘
machinery
means any engine, boiler and appliance or any combination of them,
which is situated at a mine and used of intended to
be used -
(a)
For generating, developing, receiving, storing, converting,
transforming, transmitting or distributing any form of power or
energy; or
(b)
For conveying persons, material or minerals. ’
3.11.
The authorisation in 3.1.1 bears directly to the training and
competency of a person to be near the machinery. For example
the
persons who are to be conveyed underground do so by means of the cage
(in layman’s terms, the underground elevator) which
is lowered
down the shaft by the winding engine room. The winding engine driver
controls the cables which run on the head gear
installation to lower
the cage down the shaft ‘hole’.
3.12.
The winding engine driver is trained and competent to do winding and
this is regulated by Chapter 16 of the Regulations.
3.13.
Similarly there are various persons in this chain with different
functions and competencies.
3.14.
In order to work underground (which is where the illicit miners
operate) you must be trained in all the health and safety
standards
and regulations. You are then authorised to go into the cage
(machinery) and proceed underground.
3.15.
It must be borne in mind that there are employees, for example the
payroll clerk who works in the office, who are allowed
on the mine
and in the office buildings, but not into the cage (for instance) to
go underground.
3.16.
The
Trespassing
legislation
has
a different effect and purpose in mind. It is not limited to mines
and the health and safety issues unique thereto. The [legislation]
prohibit any person who does not have permission (from certain
persons - usually the lawful occupier, owner or person in charge
of
residential, farming or business premises) from entering any land or
building.
Thus
the fact that you enter through a gate onto farm land without
permission of the owner of the farm, far from the house or buildings,
is prohibited.
3.17.
Similarly, if you enter the gate of a Mine or cut a hole into the
perimeter fence to gain access to the Mine property, yet
you are
still far from the headgear or machinery (as per the definition) and
this entry is gained without permission, then you
are trespassing.
Not only the integrity and safety of working areas and machinery is
protected, but also the integrity of the whole
property in the same
manner as that of a farm.
3.18.
If you are not caught immediately after this initial trespassing and
you manage to proceed into a working area with machinery,
or to enter
the shaft area in order to gain access to the cage or in fact enter
the cage, you become an unauthorised person entering
not only the
mine property in the broader context, but specifically an area where
‘machinery is erected’. Only then
does
Regulation 3.1.1
come into effect.
When
one bears in mind the general purpose of the two pieces
of legislation and the regulations
promulgated in respect of the
mining industry, there is a clear
distinction to be drawn.
Depending
on the circumstances and evidence, simple
trespassing cannot cover all the
blameworthy elements of a
person
proceeding into a working area and thereby endangering
not only himself, but also all the
legal employees of that mine,
either by his intentional or
reckless actions in promoting his illicit
activities, or by his sheer
ignorance of the dangers that he
creates due to his lack of training
and knowledge of safety
issues.
”
(Own underlining)
[9]
Having considered these two divergent views, the relevant provisions
of the two legislations under discussion as well as relevant
case
law
1
referred to by the Senior Magistrate concerned, it is correct that:
9.1. The two
legislations are definitely not the same and not necessarily worded
and phrased in the same way.
9.2. The preamble of the
Trespassing Act, provides that the Act was promulgated to prohibit
the entry or presence upon land and
the entry of or presence in
buildings in certain circumstances, and to provide for matters
incidental thereto.
9.3. The Mine Safety and
Health Act, as set out in its preamble was ciearly promulgated to
provide for protection of the health
and safety of employees and
other persons at mines and, for that purpose - to promote a culture
of health and safety; to provide
for the enforcement of health and
safety measures; to provide for appropriate systems of employee,
employer and State participation
in health and safety matters; to
establish representative tripartite institutions to review
legislation, promote health * and
enhance property targeted
research;
to provide for effective
monitoring systems and inspections, investigations and inquiries to
improve health and safety; to promote
training and human resources
development; to regulate employers’ and employees’
duties to identify hazards and eliminate,
control and minimise the
risk to health and safety; to entrench the right to refuse to work
in dangerous conditions; and to give
effect to the public
international law obligations of the Republic relating to mining
health and safety; and to provide for matters
connected therewith.
9.4. It is also clear
that although the regulations were repealed partly in July 2002 in
General Notice 905 in Government Gazette
23584, the Minister of
Minerals and Energy, in terms of item 4 of Schedule 4 of the
Mine
Health and Safety Act, did
not repeal
regulation 3.1.1.
In our view
there was no need to do so.
9.5. The elements that
the State must prove in both counts are distinct from each other.
For contravention of the regulations
under the Mine Safety and
Health Act the State must prove that the accused knowingly entered a
place where machinery has been
erected without authorisation. The
Mine Health and Safety Act is
clearly not about curbing loitering
underground but was specifically designed to bolster the provisions
of the Trespassing Act
which are clearly not effective to prevent
unauthorised entry into areas of the mine premises where it was
hazardous not only
to the trespassers but even its lawful employees.
[10]
in our law splitting and or duplication of charges is governed by
s83 of the Criminal Procedure Act 51 of 1977
(“the
CPA”).
The section provides:
“
If
by reason of any uncertainty as to the facts which can be proven or
if for any other reason it is doubtful which of several
offences is
constituted by the facts which can be proved,
the
accused
may be charged with the commission of all or any of
such
offences, and any number of such charges may be tried at
once
,
or the accused may be charged in the alternative with the commission
of any number of such offences.”
(My
own underlying)
[11]
It is trite that th'ere is no universally valid criterion for
determining whether there is splitting of charges or for that
matter
duplication of charges. In
S v
Davids
1998(2) SACR 313 (C) the
topic is discussed afresh and the most important decisions are
usefully summarised. The courts over the
course of time developed
two practical aids to decide whether duplication has occurred:
(i)
If the evidence which is necessary to establish the one charge also
establishes the other charge, there is only one offence.
If one
charge does not contain the same elements as the other, the are two
offences (R v Gordon
1909 EDC 254
at 258 and 269.This can be called
“the same evidence test”)
(ii)
If there are two acts, each of which would constitute an independent
offence, but only one intent, and both acts are necessary
to realise
this intent, there is only one offence (R v Sabuyi
1905 TS
170).There
is a continuous criminal transaction. This test is
referred to as “the single intent test.”
2
[12]
The same approach was adopted in
S v
Maneli
2009 (1) SACR 509
SCA at
para [8] where Streicher JA explained:
‘“
One
such test is to ask whether two or more acts were done with a single
intent and constitute one continuous criminal transaction.
Another
is to ask whether the evidence necessary to establish one crime
involves proving another crime.”
[13]
Recently in S
v
Dlamini
2012
(2) SACR 1
(SCA) the court with reference to S v
Whitehead
and Others
2008
(1) SACR 431
(SCA) reiterated the very test referred to in
Maneii
above and held
further that
“...there is
no all embracing formula. The various tests are mere guideiines-they
are not rules of law, nor are they exhaustive.
Their application may
yield a clear result, but if not, a court must apply its common
sense, wisdom, experience and sense of
fairness to make this
determination.”
[14] In applying the
guidelines set out above each case must be decided on its own facts.
In the present cases the accused pleaded
guilty and were convicted
on admissions contained in statements made in terms of section 112
of the CPA. In each of the present
cases two factors are of
particular relevance. First, in each case the accused was charged
with trespassing underground in a
mine, being the same place where
the alleged contravention of regulation 3.1.1 took place. Second, in
each case the accused declared
that he entered underground in the
particular mine with the intention to steal gold or gold bearing
material and the prosecution
accepted the statement. Each accused
was accordingly also convicted of attempted theft.
[15] In the particular
circumstances of each of these cases the act of unauthorised
entering underground in the mine constituted
one continuous criminal
transaction with a single intent. In our judgment therefore the
conviction of contravention of regulation
3.1.1 in each of these
cases amounts to an impermissible duplication of convictions and
must be set aside.
[16] As indicated
already, the essence of the crime of contravention of regulation
3.1.1 is the entering into a mine or other
place where machinery has
been erected. In neither case before us was this element admitted by
the accused. For this reason also,
the convictions of contravention
of regulation 3.1.1 cannot stand. '
[17] In the
circumstances the following order is granted:
ORDER:
1. The convictions
and sentences in respect of count 1 and 3 in A633/2012 are
confirmed.
2. The conviction and
sentence on count 4 in A633/2012 are set aside and substituted with
the following:
“
The
accused is found not guilty and discharged.”
3. The convictions
and sentences in respect of count 1 and 2 in A1155/2012 are
confirmed.
4. The conviction and
sentence in respect of count 3 in A 1155/2012 are set aside and
substituted with the following:
“
The
accused is found not guilty and discharged. ”
C.H.G.
VAN DER MERWE, J
B.C. MOCUMIE,
J
1
S
v Long Distance (Natal) (Pty) Ltd and Others
1990
(2) SA 277
(A)
2
:
See
Hiemstra’s
Criminal Procedure
Service
Issue 3, May 2010, A Kruger, 14-5.