S v Tengana (3918/2003) [2003] ZAWCHC 55; 2007 (1) SACR 138 (C) (17 October 2003)

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[2003] ZAWCHC 55
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S v Tengana (3918/2003) [2003] ZAWCHC 55; 2007 (1) SACR 138 (C) (17 October 2003)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
HIGH COURT REF NO:
3918/2003
CASE No:

EVS 477/2003
MAGISTRATE’S SERIAL No: 78/2003
I
n the matter of
THE
STATE
and
DALE  TENGANA
_____________________________________________________________________
REVIEW JUDGMENT  DELIVERED  :   17
OCTOBER  2003
_______________________________________________________________________
MOOSA, J:
1.
The accused was charged with dealing in liquor on 14 February 2003,
in contravention of Section 154(1)(a)
of Act 27 of 1989.  A
quantity of liquor was seized by the police in terms of Section 20 of
the Criminal Procedure Act, No 51
of 1977 (“the Act”).  A
written notice (summons) in terms of Section 56 of the Act was issued
and served on the accused.
In such summons the accused was
given the choice of either paying an admission of guilt fine of
R750,00 or to appear in court on
19 March 2003 to answer the charge.
The accused elected to pay the admission of guilt fine.  The
fine was paid on the
same day as the commission of the offence.
The admission of guilt fine was confirmed by the magistrate in terms
of Section
57(7) of the Act on 17 February 2003 on which date he was
effectively convicted and sentenced on the particular
charge.
2.      On 26 February 2003,
the magistrate made an order,
extra curia
, that the quantity
of liquor seized from the accused be forfeited to the State.
The order was made in the rooms of the magistrate
by means of an
endorsement on the SAP13 form to the effect that all objects seized
by the police be confiscated to the State in terms
of Section 32(2)
of the Act.  The magistrate explained that this was a rule of
practice in his division.  The legal representative
of the
accused challenged the validity of the order in terms of which the
magistrate ordered the liquor to be forfeited to the State.
3.
The accused brought an application for the “order” to be set
aside and the liquor to be returned
to him.  The magistrate,
with the benefit and wisdom of hindsight, was doubtful whether the
procedure was legally permissible
and correct and whether he was
competent to hear the application.  He also conceded that a
magistrate is not competent to make
an order in terms of the
provisions of Section 32 of the Act.  He regarded himself
functus officio
and accordingly submitted the matter to the
High Court for special review in terms of Section 304(4) of the Act.
For the purpose
of the application the parties agreed that the order
was of an administrative nature and that the forfeiture order was
ab
initio
void.
4.      Section
32 of the Act specifically provides that where an admission of guilt
has been paid, the object
seized by the police shall be returned to
the person who is legally entitled to possess such items (Section
32(1)).  If the
person is not legally entitled to possess such
object, or where a person legally entitled to claim possession has
failed to do so
after due notice, such object shall be forfeited to
the State (Section 32(2)).    In that particular
circumstance
the authority to deal with the object vests in the
police and the magistrate has no jurisdiction to deal
therewith.
5.      Where, however,
the object is required as evidence at the trial or for purpose of a
court order,
the police official investigating the case shall
transfer the object to the safe custody of the clerk of the court
where the trial
is being heard (Section 33).  The presiding
officer, after conclusion of the case, can order that the object be
returned to
the person legally entitled to possess the object or
failing that, to be forfeited to the State (Section 34).  Where
the accused
is convicted of any offence the object used in the
commission of the offence may, without notice to any person, be
declared forfeited
to the State (Section 35).
6.
Section 57(7) of the Act confers on the magistrate the power to
review the conviction and the admission
of guilt fine.  In the
case where an accused is given the option to pay an admission of
guilt, the magistrate can interfere
with such conviction if he or she
is of the view that it is not in accordance with justice.  Such
power of review does not extend
to the case where the police act in
terms of Section 32 of the Act with regard to the object seized by
the police in terms of Section
20 and held by it in terms of Section
30(c).  Firstly, because the object has not been transferred
from the control and custody
of the police to the control and custody
of the clerk of the court for the purposes of the trial in terms of
Section 33.  Secondly,
there was no trial entitling the
magistrate at the conclusion thereof, to act in terms of powers
vested in him or her in terms of
Section 34.  The question which
arises: Can a magistrate who confirms a conviction and an admission
of guilt fine, order the
forfeiture of an object used in the
commission of such offence in terms of Section 35?  Sections 32
and 35 draw a distinction
between objects seized during a police raid
and objects used in the commission of an offence.  HIEMSTRA:
Suid-Afrikaanse Strafproses
(6e uitgawe) at p 66 says:
“
Die
verbeurdverklaring kan ook by ʼn erkenning van skuld plaasvind waar
daar geen verhoor was nie, en die beslissing in
R v
Van der Merwe
1958 (2) SA 82
(K) val weg.  Die
beslissing het berus op die aanwesigheid van die word ‘verhoor’
in die ou artikel, maar dit is nou weggelaat.”
I respectfully disagree with the conclusion of the learned author in
this regard.
7.      The object of
giving an offender the election of paying an admission of guilt fine
in terms of Section
57(1) is to pre-empt a trial  (
S v
Shange
1983 (4) SA 46
(N) at 490D-E). In that case any
object seized in terms of Section 20 and held in terms of Section
30(c) is dealt with by the police
in terms of Section 32.  These
objects would include articles used or intended for use in or which
may afford evidence of the
commission of the offence (Section 20).
Implicit in Section 35 is, firstly, that the forfeiture order follows
a trial and,
secondly, it is confined to any object which was used in
the commission of the offence.  Therefore the decision in
R v Van der Merwe (supra)
is as relevant today as it was
at the time and the omission of the word “trial” in the present
text had no effect on the application
of Section 35.  The answer
to the question posed earlier is therefore that a magistrate who
confirms the conviction and admission
of guilt fine in terms of
Section 57(6) cannot order the forfeiture of the object used in the
commission of an offence by virtue
of the provisions of Section
35.
8.      I now turn to discuss the
question of whether the court is
functus officio
once it had
confirmed the conviction and admission of guilt fine in terms of
Section 57(7).  There is a difference of opinion
between the
Natal Provincial Division and the other Divisions.  The full
bench of this Division in
S v Louw
1982 (4) SA 556
(C) at 560A-F held that the court is precluded from later reviewing
its own decision on the basis of “new facts” after it had
already
confirmed the conviction and fine in terms of Section 57(7) as the
court is
functus officio
.  I am in agreement with the
ratio decidendi
of the
Louw
case and, in
any case, I am bound by the doctrine of
stare decisis
, by the
full bench decision of this Division.
9.
In casu
the magistrate, firstly, was
functus officio
and
had no authority to order the forfeiture of the quantity of liquor
after having confirmed the conviction and the admission of
guilt
fine.  He had effectively completed his reviewing function.
Secondly, the magistrate was not competent to entertain
an
application for the setting aside of his “invalid order” for the
same reason, namely, that he was
functus officio
.  The
magistrate correctly referred the matter for special review in terms
of Section 304(4) of the Act, to this court.
(See also
R
v Van der Merwe
1958 (2) SA 82
(C).)
10.
In the light of my findings, the order of the magistrate, dated 26
February 2003 ordering the forfeiture
of the liquor to the State
purportedly in terms of Section 32, is set aside.
……………………….
E  MOOSA
DESAI, J:  I agree.
………………………..
S  DESAI