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2011
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[2011] ZAFSHC 96
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S v Ngalo (133/2011) [2011] ZAFSHC 96 (21 April 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 133/2011
In the review between:
THE STATE
and
BENJAMIN MONGEZI
NGALO
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
C J MUSI, J
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
21 APRIL 2011
_____________________________________________________
[1] This is a special
review with a request by the trial magistrate that a conviction and
sentence be set aside.
[2] The accused was
charged with three counts. In terms of count one the accused was
charged with a contravention of section 82
of the Third
General Law
Amendment Act 129 of 1993
, in that on or about 7 January 2009 and at
or near Bloemfontein the accused was in the possession of Allen keys.
In count 2 it
was alleged that on or about 27 March 2009 and at St
Andrew Street, Bloemfontein the accused broke open a motor vehicle
and stole
a briefcase. Count 3 alleged a contravention of section 36
of the General Law Amendment Act, no 62 of 1955 committed on or about
5 October 2007 at or near Hanger Street, Bloemfontein in respect of
possession of a tyre.
[3] After the State’s
case was closed, the accused was discharged in terms of section 174
of the Criminal Procedure Act on
both counts 1 and 3. This took place
on 30 November 2010. The accused then testified in his own defence in
respect of count 2 only.
[4] Despite this, on 3
December 2010, the magistrate convicted the accused of theft as
charged on count 2, as well as of contravention
of section 82 of Act
no 129 of 1993 in respect of possession of an Allen key in relation
to the breaking open of the motor vehicle
referred to in count 2. The
accused was then also separately sentenced in respect of both the
theft and the contravention of section
82 of Act no 129 of 1993.
[5] The conviction of
theft on count 2 as charged and the sentence imposed in respect
thereof is in accordance with justice. The
conviction of
contravention of section 82 of Act no 129 of 1993 is a glaring and
unexplained error that must be corrected by setting
aside the
conviction and the sentence imposed in respect thereof.
[6] The conviction and
sentence in respect of count 2 as charged, are confirmed but the
conviction and sentence in respect of the
contravention of section 82
of Act no 129 of 1993 are set aside.
_________________________
C. H. G. VAN DER
MERWE, J
I concur.
_______________
C. J. MUSI, J
/eb