S v Mosipili (901/2005) [2005] ZAFSHC 102 (1 September 2005)

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[2005] ZAFSHC 102
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S v Mosipili (901/2005) [2005] ZAFSHC 102 (1 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 901/2005
In
the case between:
THE STATE
and
TSHEDISO PETRUS
MOSIPILI
CORAM:
CILLIé J
et
H.M. MUSI J
JUDGEMENT:
H.M. MUSI J
_____________________________________________________
DELIVERED ON:
1 SEPTEMBER 2005
_____________________________________________________
[1] When this matter
initially came before me for review in terms of Section 304(4) of the
Criminal Procedure Act, I raised a query
as follows:
¡°
Trespass
is a recognised offence under our law and I do not follow why it is
sought so have the proceedings reviewed. The magistrate
must give a
full explanation of what transpired necessitating a review.”
In response, the
magistrate points out that the real problem is that the charge sheet
was vague in that it did not contain a reference
to the relevant
statute under which the accused was charged, this being a statutory
offence. The charge sheet as framed alleges
a common law offence of
“trespassing” against the accused.
[2] Now, it is so that
where an accused is charged with a statutory contravention, the
requirements of Section 84(3) of the Criminal
Procedure Act will not
have been complied with if the charge sheet does not mention the
number of the Act creating the offence. See
Hiemstra’s
Suid-Afrikaanse Strafproses, 6
th
edition by Kriegler and Kruger at 240. It has also been held that
omission of certain details of an offence that would normally
be
mentioned, such as the number of the section that creates the
offence, will be overlooked provided that particulars of the
contravention
still remain clear. See Du Toit
et
al
Commentary on the Criminal Procedure Act at paragraphs 14-15.
However, this applies to omission of sections of the relevant statute
and not the omission to mention the Act itself.
In
casu,
the
charge sheet omitted to mention the Act creating the offence of
trespass, thereby rendering the charge sheet
excipiable
on the
basis that it does not disclose an offence. It was fatally
defective, as there is no common law offence such as “trespassing”.
The accused was therefore wrongly convicted and punished.
[3] Accordingly
the conviction and sentence are set aside.
______________
H.M. MUSI, J
I concur.
____________
C.B.
CILLIé, J
/em