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
>>
2011
>>
[2011] ZAFSHC 42
|
|
S v Mosia (62/2011) [2011] ZAFSHC 42 (3 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 62/2011
In
the review between:-
THE
STATE
and
LEBUANG
JOSEPH MOSIA
CORAM:
MUSI, JP
et
SINGH, AJ
DELIVERED ON:
3 MARCH 2011
SINGH,
AJ
INTRODUCTION:
[1] This matter was
referred to this court for special review in terms of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
, by the magistrates’
court, Bloemfontein.
BACKGROUND FACTS:
[2] On 24 December 2010,
Mr. Lebuang Joseph Mosia, the accused, was stopped on the N6 road
near Bloemfontein by traffic officer,
Mr. Muller. He was served with
a written notice (annexure “B”) issued in terms of
section 56
of Act 51 of 1977 and his vehicle was impounded for
allegedly having conveyed passengers for reward without a valid
operating permit.
The notice further contains an endorsement
specifying an amount of one thousand five hundred rands (R1 500),
which may be accepted
as an admission of guilt fine. The notice
generally complies with the requirements set out in section 56(1)(a),
(b), (c) and (d)
of Act 51 of 1977. Mr. Mosia complied and paid the
admission of guilt fine plus an additional impounding fee of two
thousand rands
(R2 000). The magistrate presiding at the subsequent
proceedings in terms of section 57(7) of Act 51 of 1977 confirmed the
deemed
conviction and sentence of Mr. Mosia.
FURTHER EVIDENCE:
[3] Subsequent to the
section 57(7) confirmation, Mr. Mosia addressed a letter of complaint
to the Court
a quo
setting out new evidence that was not
before the magistrate. He annexed the following documents in support
of his allegations being
the letter of complaint (annexure “A”),
the section 56 notice (annexure “B”), the receipt for R1
500,00
(annexure “C”), the registry record of payments
showing the payment of R1 500,00 (annexure “D”),
particulars
of permit holder, Mr. Mosia, issued by the Department of
Transport for his motor vehicle YNB417GP (annexure “E”),
the
application fee for the said licence in the sum of two hundred
rands (R200) paid by Mr. Mosia (annexure “F”), and
electronic
confirmation of the approval of the said licence (annexure
“G”). It is Mr. Mosia’s allegation that Mr. Muller
issued the section 56 notice inspite of the fact that he produced his
transport permit, and kept his transport permit and refused
to give
it back to him. He further alleges that he asked another traffic
officer, Mr. Mdluli, to release his vehicle, who said
it would not be
released unless he paid the admission of guilt fine (R1 500) and
impounding fine (R2 000) respectively. According
to Mr. Mosia, he
paid the aforesaid fines under protest to get his vehicle back as he
could not afford to lose income he generated
with it. Whilst there is
a receipt for the admission of guilt fine (R1 500), the records of
the Court
a quo
do not show the payment of the impounding fine
(R2 000) made by Mr. Mosia.
THE ISSUE:
[4] The issue for this
court to determine is whether or not the conviction and sentence of
the accused (Mr. Mosia) is in accordance
with justice and whether
interference by this court will be warranted for justice to prevail.
THE PRINCIPLES OF
LAW:
[5]
Section 57(7)
of the
Criminal Procedure Act, 51 of 1977
, makes provision for the presiding
magistrate, after examination of the documents, in his or her
discretion to set aside a conviction
and sentence which is not in
accordance with justice or a determination made by the magistrate in
terms of
section 57(5)
, and direct that the accused be prosecuted in
the ordinary way. It is a further
proviso
to
section 57(7)
that, in lieu of setting aside the conviction and sentence, the
magistrate may direct that the amount by which the admission of
guilt
fine exceeds the said determination be refunded to the accused.
[6] From the documents
annexed to Mr. Mosia’s letter of complaint to the Court
a
quo
it appears that he was wrongly convicted and sentenced. Had
the new evidence been available at the
section 57(7)
confirmation
proceedings, the magistrate would probably not have confirmed the
fines and would have directed that the accused be
prosecuted in the
ordinary course.
[7] In the result it is
ordered as follows:
1. The accused’s
conviction and sentence are set aside.
2. The matter is referred
back to the Court
a quo
for the magistrate to deal with the
matter
de novo
in terms of
section 57(7)
of the
Criminal
Procedure Act 51 of 1977
and in any other manner as the magistrate
may deem fit.
___________
S. SINGH, AJ
I concur.
____________
H.M. MUSI, JP
/sp