Summary of Judgment

1. Introduction

This was a special review in the Northern Cape Division of the High Court, Kimberley, arising from criminal proceedings in the Kimberley Magistrates’ Court. The matter concerned whether a conviction recorded under repealed legislation could be corrected on review to reflect the currently applicable statutory provision, without prejudicing the accused.

The parties were the State as prosecuting authority and Alistair Venter as the accused. The accused had been legally represented in the magistrates’ court proceedings.

The procedural history was that the accused was convicted on 6 February 2006 in the magistrates’ court, inter alia, of contravening section 25(1)(a) of a statute identified in the proceedings as Act 7 (the provision dealing with unlawfully pretending to be a member of the police). Before sentence was imposed, the magistrate realised that the legislation under which the accused had been charged and convicted had been repealed, and that the applicable provision was section 68(1) of Act 68 of 1995. The magistrate then submitted the matter on special review, requesting the High Court to “correct” the conviction by changing it to a conviction under the current legislation.

The general subject-matter of the dispute was the proper characterisation and correction of the statutory basis for a conviction where the conduct proved amounts to an offence under a successor provision, and whether such a change would amount to an impermissible substitution that could prejudice the accused.

2. Material Facts

The High Court proceeded on the factual findings accepted by the trial court. The evidence on which the conviction rested was that of a single witness, the complainant, Ms M Mabote.

According to her accepted evidence, the accused arrived at her home on two occasions and introduced himself as a Captain in the police service. He made enquiries concerning her daughter, Rachael, who had a pending rape case. These factual allegations were treated as material because they went directly to the statutory elements of pretending to be a member of the police.

The accused’s version, as recorded in the review judgment, was that he went to Ms Mabote’s home only to apologise on behalf of his family (he being the brother of one of the suspects in the rape case). The magistrate rejected this version as improbable. The High Court endorsed the magistrate’s rejection of the accused’s explanation and accepted that the finding that the accused pretended to be a member of the police was correct.

Beyond these facts, the review court did not treat additional evidentiary detail as necessary to determine the narrow review question, which concerned the statutory correction rather than the underlying merits of the conviction.

3. Legal Issues

The central legal question was whether, on special review, the High Court could amend the charge (in the charge-sheet) and substitute the conviction to reflect the correct and current statutory provision—namely section 68(1) of Act 68 of 1995—where the accused had been charged and convicted under a repealed provision.

This required the court to determine, as a matter of law applied to the facts, whether the proposed change would cause prejudice to the accused’s defence. The inquiry was framed as whether the amended charge would constitute a totally new charge or whether it would amount to the same offence with a change in name or statutory source, such that the allegations and defence would remain the same.

A further issue implicit in the review was whether the High Court should exercise its inherent review powers to effect such a correction and remit the matter for sentencing.

4. Court’s Reasoning

The High Court accepted that the magistrate had correctly identified a statutory problem: the accused had been charged and convicted under legislation that had been repealed, and the currently applicable provision criminalising the same kind of conduct was section 68(1) of Act 68 of 1995.

The court applied the established test for amendment or alteration of a charge in circumstances of this kind, namely that the decisive consideration is whether the change would prejudice the accused in the conduct of the defence. The judgment expressed this by asking whether the contemplated amendment differs from the original charge to such an extent that it constitutes a “totally new” charge, or whether it is essentially the same offence, only having undergone a change in statutory formulation or label. In support of this approach, the court relied on S v Kruger en Andere 1989 (1) SA 785 (A) and S v Mahlangu 1997 (1) SACR 338 (T).

The court then compared the two provisions. It reproduced the wording of section 25(1)(a) (as quoted in the judgment) which criminalised a person, not being a member of the force, who by words, conduct, or demeanour pretends to be a member. It also reproduced section 68(1) of Act 68 of 1995, which similarly criminalises any person who pretends that he or she is a member, albeit with a different penalty regime.

On the basis of this comparison, the court concluded that there could be no doubt that contraventions of the two sections constituted the same offence in substance. The court reasoned that because the essential allegations against the accused would remain the same, and because the defence would not be altered by the statutory substitution, the accused would suffer no prejudice from the amendment. The review court therefore held it appropriate to exercise its inherent review powers to amend the statutory reference in the charge-sheet and align the conviction with the applicable law.

In addition, the court confirmed that, on the accepted evidence, the factual finding that the accused pretended to be a member of the police was correct. The review intervention was therefore directed at correcting the legal basis of the conviction, not disturbing the factual findings made by the trial court.

5. Outcome and Relief

The High Court ordered that the charge-sheet be amended by replacing the reference to section 25(1)(a) of Act 7 (as described in the record) with a reference to section 68(1) of Act 68 of 1995.

It further ordered that the original conviction be set aside and replaced with a conviction for contravening section 68(1) of Act 68 of 1995, and that the conviction as amended be confirmed.

Finally, the matter was referred back to the magistrate for completion of the sentencing proceedings. The judgment, as reported, did not make a separate order as to costs.

Cases Cited

S v Kruger en Andere 1989 (1) SA 785 (A)

S v Mahlangu 1997 (1) SACR 338 (T)

Legislation Cited

Section 25(1)(a) of Act 7 (as cited and quoted in the judgment as “Wet 7 van 1958”)

Section 68(1) of the South African Police Service Act 68 of 1995

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The High Court held that the offence of unlawfully pretending to be a member of the police under the repealed provision and the offence created by section 68(1) of Act 68 of 1995 are the same in substance, and that substituting the correct statutory basis would not prejudice the accused because the allegations and the defence would remain unchanged.

It accordingly held that it was competent, in the exercise of the court’s inherent review powers, to amend the statutory reference in the charge-sheet, set aside the conviction recorded under the repealed provision, substitute a conviction under section 68(1) of Act 68 of 1995, confirm the conviction as amended, and remit the matter to the magistrates’ court for sentencing.

LEGAL PRINCIPLES

A court considering an amendment to a charge, or a correction on review affecting the statutory formulation of the charge and conviction, applies the principle that the decisive question is whether the amendment would prejudice the accused in the conduct of the defence. The inquiry focuses on whether the proposed change introduces a totally new charge, or instead amounts to the same offence under a different statutory formulation, in which event prejudice is not established merely because the statutory reference changes.

Where the originally cited statutory provision has been repealed, but the proved conduct falls within a successor provision criminalising the same conduct in substance, the reviewing court may, where appropriate, exercise its powers to correct the charge-sheet and substitute the conviction to reflect the applicable provision, while preserving the integrity of the factual findings and remitting the matter for sentencing under the corrected statutory framework.