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
>>
2010
>>
[2010] ZAFSHC 44
|
|
S v Mbhele [2010] ZAFSHC 44 (30 April 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: 157/2010
In the
matter of:
THE STATE
and
THAPHELO
PRAISE-GOD MBHELE
_____________________________________________________
CORAM:
CILLIé,
J
et
EBRAHIM,
J
JUDGEMENT:
EBRAHIM, J
____________________________________________________
DELIVERED
ON:
30 APRIL 2010
_____________________________________________________
[1]
This
is a matter which has been placed before me on special review in
terms of
section 304(4)
of the
Criminal Procedure Act, no 51 of 1977
on the basis of the following reasons by the learned presiding
magistrate:
“
1.
On 03/12/2009,
09/12/09 and on 19/01/2010 I presided in the above matter where the
accused was charged with one count of theft,
The State alleged
that on 30
th
May 2009 and at Tshiame in the abovementioned district the accused
did unlawfully and intentionally steal a 9mm pistol fire arm
being
the property or in the lawful possession of Jabulani Cyprian
Madinana. There is no other count the accused was charged of.
2.
The accused pleaded not guilty and the
state called three (3) witnesses, their evidence appears on the
record of proceedings. At
the end of the state case the defence
closed its case without giving any evidence.
3.
The evidence presented by the state
did not prove that accused stole the said fire arm. It only proved
that the accused was in
possession of the said fire arm without a
lincence. The evidence is clear from the record.
4.
At the close of the
defence case the state argued for a conviction on possession of fire
arm without a licence. The defence concurred
with the state that
accused could only be convicted of possession of
firearm
without a licence. When both parties concurred on conviction of
possession of firearm without a licence I forgot that accused
was not
charged of possession of the fire arm without a licence as the second
count.
5.
It was also clear
from me that a conviction on a charge of theft could not stand and I
convicted accused on possession of fire arm
without a licence without
refreshing myself with charges that were put to accused. I say so
because if I had done so I would have
noticed that accused was never
charged of possession of fire arm without licence.
6.
I submit that I
erred in convicting accused of possession of fire arm without a
licence. My reasons for that submission is that
accused was never
charged of an offence of possession of fire arm without a licence.
He was only charged of theft. To add on
that, an offence of
possession of fire arm without a licence is not a competent verdict
on a charge of theft.
7.
I am of the opinion
that instead of convicting accused of possession of fire arm without
a licence I should have convicted him of
contravening section 36 of
the General Law Amendment Act 62 of 1955 because despite the fact
that he was found in possession of
the said fire arm by Inspector
Makhubo he decided not to testify in order to give explanation why he
was in possession of the said
fire arm. The evidence in Inspector
Makhubo is that he received information that accused had stolen a
fire arm and fled to Bergville.
He then approached accused’s
father to accompany him to Bergville where accused was. When he
arrived there he explained
to the accused the purpose of his visit.
Thereafter accused took the fire arm in question behind the wardrobe
and gave it to Inspector
Makhubo. According to Inspector Makhubo
when he asked where he got the fire arm accused said he got it from
Ayanda at Khalanyoni,
Tshiame B, which is in Harrismith.
For me the first
two requirements of section 36 of the General Law Amendment Act 62 of
1955 were met. What was left then was for
the accused to give
satisfactory explanation of his possession which explanation he was
supposed to give in court but he failed
to do that as he did not give
explanation at all.
8.
In the circumstances I am of the
opinion that accused was unable to give satisfactory explanation of
his possession which is the
third and last requirement of section 36
of Act 62 of 1955.
9.
I am, therefore, of the opinion that
the proceedings were not in accordance with justice.
10.
I, therefore,
request the Honourable Judge of review to set aside the conviction of
possession of fire arm without a licence and
substitute it with a
conviction of contravening section 36 of the General Law Amendment
Act 62 of 1955.
11.
As far as sentence
is concerned, I will not change it except the conditions of
suspension.
I, therefore, request that the
sentence read as follows:
‘
Eighteen
(18) months imprisonment, six (6) months of which is suspended for a
period of five (5) years on condition that accused
is not again
convicted of theft or contravention section 36 or 37 of the General
Law Amendment Act 62 of 1955 committed during
period of suspension.’
12.
I contacted
Correctional Services here in Harrismith where the accused is kept
and it is confirmed that he is still in custody,
so it will be easy
for him to be brought to court and be advised of the amendments in
conviction and sentence.”
[2] Why the accused was
not charged with the illegal possession of a fire arm is unclear.
[
3] The
learned magistrate is quite correct that a verdict of contravening
section 36 of the General Law Amendment Act, no 62 of
1955 is
competent in the circumstances of this case. It is clear that the
competent verdicts on a charge of theft were explained
to the
accused. In addition to that the accused was defended and it can
therefore be accepted that his defence is acquainted with
the
competent verdicts on a charge of theft.
[4] The
proceedings are accordingly not in accordance with justice and the
following order is made:
1. The
conviction of possession of a fire arm without a license is set
aside
.
In its place the accused is convicted of contravening section 36 of
the General Law Amendment Act, 62 of 1955.
2. The
sentence of 18 months imprisonment, 6 months of which are suspended
for 5 years on condition that the accused is not again
convicted of
the illegal possession of a fire arm during the period of suspension
is set aside. In its place the following sentence
is substituted:
“
18
(eighteen) months imprisonment 6 months of which is suspended for a
period of 5 (five) years on condition that the accused is
not
convicted of theft or contravening section 36 or section 37 of the
General Law Amendment Act, no 62 of 1955 committed during
the period
of suspension.”
____________
_
S. EBRAHIM, J
I
concur.
__________________
C. B. CILLIé, J
/em