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[2011] ZAFSHC 183
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S v Thamae and Others (318/2011) [2011] ZAFSHC 183 (10 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 318/2011
In
the review between:-
THE
STATE
and
PATRIC TSHIDISO
THAMAE
…......................................
Accused
Three
SIAS MOKHETHI HAMLA
….............................................
Accused
Four
PASEKA PITSO
…..............................................................
Accused
Five
_____________________________________________________
CORAM:
KRUGER
et
C.J. MUSI, JJ
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
10 NOVEMBER 2011
_____________________________________________________
[1] This is a judgment on
review. Five accused were arraigned before the magistrates’
court at Ficksburg. On 5 July 2011 all
charges were withdrawn against
accused numbers 1 and 2. Accused numbers 3, 4 and 5 were charged as
follows:
Accused No. 3: Patric
Tshidiso Thamae
Count 1:
Contravention of section 5(b) Act 140 of 1992.
Dealing in dagga: 30 kg
on 2 July 2011 on R26 Road, Ficksburg.
Count 2:
Contravention of section 49(1)(a) Act 13 of 2002.
Illegal foreigner in the
Republic on 2 July 2011 on R26 Road, Ficksburg.
Accused No. 4: Sias
Mokhethi Hamla
Count 3:
Contravening of section 5(b) Act 140 of 1992.
Dealing in dagga: 16,6 kg
on 2 July 2011 on R26 Road, Ficksburg.
Count 4:
Contravention of section 49(1)(a) Act 13 of 2002.
Illegal foreigner in the
Republic on 2 July 2011 on R26 Road, Ficksburg.
Accused No. 5: Paseka
Pitso
Count 5:
Contravention of section 5(b) Act 140 of 1992.
Dealing in dagga: 21,9 kg
on 2 July 2011 on R26 Road, Ficksburg.
Count 6:
Contravention of section 49(1)(a) Act 13 of 2002.
Illegal foreigner in the
Republic on 2 July 2011 on R26 Road, Ficksburg.
[2] Each of the three
accused pleaded guilty to the charges against that particular
accused, and each accused was so convicted.
Accused number 3 was
sentenced to R3 500,00 or three years imprisonment on count 1, and
given a fine of R200,00 or 30 days imprisonment
on count 2. Accused
number 4 was given a fine of R2 000,00 or 18 months imprisonment on
count 3, and on count 4 a fine of R200,00
or 30 days imprisonment.
Accused number 5 was sentenced to a fine of R2 500,00 or 18 months
imprisonment on count 5. On count 6
he was given a fine of R200,00 or
30 days imprisonment. On the charges of dealing in dagga (counts 1, 3
and 5) each accused also
got a period of suspended imprisonment.
There is nothing wrong with the sentences.
[3] The only common
denominator in the charges is that they were all committed on the R26
Road, Ficksburg, on 2 July 2011. Accused
numbers 3, 4 and 5 all
carried different quantities of dagga.
[4] I asked the
magistrate whether it was correct to charge accused numbers 3, 4 and
5 together and whether
section 156
of the
Criminal Procedure Act 51
of 1977
or any other law allows such procedure.
Section 156
reads as
follows:
“
Any number
of persons charged in respect of separate offences committed at the
same place and at the same time or about the same
time, may be
charged and tried together in respect of such offences if the
prosecutor informs the court that evidence admissible
at the trial of
one of such persons will, in his opinion, also be admissible as
evidence at the trial of any other such person
or such persons.”
[5] The magistrate in his
reply says all three accused were charged with similar but separate
offences. The magistrate points out
that the prosecutor in this case
did not inform the court that the evidence admissible at the trial of
one accused will also be
admissible as evidence at the trial of any
other accused, as stipulated in
section 156.
I agree that the
information by the prosecutor is not essential and that the absence
of such information does not vitiate the proceedings.
[6] The magistrate says
the only difference in the offences committed by the accused was the
varying weight of the dagga. They were
not prejudiced, he says.
[7] As
to whether the same transaction, as contemplated in
S
v RAMGOBIN AND OTHERS
1986 (1) SA
68
(N) applies in respect of all three accused, the magistrate
submits that the accused “committed the same ‘transaction’
i.e. dealing in dagga but to different extents”. The magistrate
understands “transaction” to be the act or conduct
in the
criminal law sense of the word. In his view, if I understand his
argument correctly, the “transaction” contemplated
in
CHANG WING, LEONG SOO AND DADA GIA v
REX
1905 TS 767
;
R
v ADAMS AND OTHERS
1959 (1) SA 646
(Special Criminal Court) at 666 C – D;
S
v RAMGOBIN AND OTHERS
,
supra
at 74 F – J means the offence. Innes CJ in
the
CHANG WING
-case,
supra
,
describes “transaction” in relation to the same set of
facts (at 768 top). If the magistrate’s contention that
“transaction” refers to the offence is correct, it would
mean that 200 drunken drivers apprehended at a road block
on one day,
could be charged in one charge sheet. That is not the intention of
section 156.
S v Adams
relied upon by the magistrate related to charges
of treason involving 91 accused. Different considerations might be
relevant when
dealing with treason as opposed to dealing in dagga,
because in a treason charge there might be various acts performed
over a period
of time.
[8]
The joinder of the three accused in this case was irregular. However,
they did not object and there was no prejudice to them.
As Ramsbottom
AJP said in
DAVID AND OTHERS v VAN NIEKERK, NO AND
ANOTHER
1958 (3) SA 82
(T) at 90 D:
“
If
the accused do not object, and if there is no prejudice, the
irregularity may not be fatal, but still it is an irregularity.”
It would not be in the
interests of justice to interfere with the convictions and sentences
in these circumstances. The practice
to join all accused arrested at
the same “road block” should be discouraged.
[9] The magistrate raises
two further reasons why in his view the convictions are not in order.
They are the amendment of certain
sections of Act 13 of 2002, and a
duplication of convictions.
[10] The accused were
charged under
section 49(1)(a)
of the
Immigration Act 13 of 2002
which has, according to the magistrate, been repealed. Act 19 of
2004, to which the magistrate refers, is the
Immigration Amendment
Act which
came into operation on 1 July 2005.
Section 45
of Act 19 of
2004 substitutes section 49(1) of Act 13 of 2002. The magistrate
incorrectly refers to Act 13 of 2002 as the “old”
Immigration Act. Act
13 of 2002 was not repealed but
amended
by the
Immigration Amendment Act 19 of 2004
. The accused committed
the offences on 2 July 2011 and were charged under
section 49(1)(a)
and the rest of Act 13 of 2002 as those provisions read at that time.
For the sake of clarity the charge ought to indicate that
section
49(1)(a) has been substituted by section 45 of Act 19 of 2004. That
charge was in accordance with law.
[11] As to the
magistrate’s concern about duplication of convictions, he
refers to an unreported Western Cape High Court case
where the court
held that assault committed in the course of an escape from lawful
custody was a duplication with the charge of
escaping. The magistrate
says that the accused entered the Republic with the intent to deal in
dagga and there was a splitting
of charges, and he says the
convictions under Act 13 of 2002 in relation to entering the Republic
are bad in law and ought to be
set aside.
[12]
Two practical aids are used to decide whether there has been a
duplication of charges. There is no universally valid criterion.
The
facts of the case guide the court as to which test to apply. (
S
v BENJAMIN EN 'N ANDER
1980 (1) SA 950
(A) at 956 E –
H)
On the facts of this case
the “evidence” test should be applied. The offences of
dealing in dagga and entering the Republic
are distinct. Once in the
Republic, the accused could have done anything and their intent is
not a determining factor. The magistrate
refers to the escaping case
where the assaults formed part of the escape. In the present case the
accused had to enter the Republic
to deal in dagga here, but the
criminalising statutes have different aims and requirements. There
was no improper duplication of
convictions.
[13] There is no basis to
interfere with these convictions. Although there was improper
joinder, there was no prejudice to the accused.
ORDER
[14] The convictions and
sentences of all three accused are confirmed.
__________
KRUGER
I
agree.
__________
C.J. MUSI, J
/sp