Mosele v S (A351/2014) [2015] ZAGPPHC 240 (29 April 2015)

Mosele v S (A351/2014) [2015] ZAGPPHC 240 (29 April 2015)

The court found that the reverse onus provision in section 250(1)(d) of the Criminal Procedure Act is unconstitutional and should not have been relied upon by the trial court. The appellant's version that he had permission from Mr Mtshali to be on the premises was reasonably possibly true, and there was no evidence of intention to contravene the Trespass Act. The absence of mens rea and the failure to prove unlawful entry beyond reasonable doubt meant that the conviction could not stand. Consequently, the appeal against both conviction and sentence succeeded.

Citation
[2015] ZAGPPHC 240
Parties
Appellant: Elvis Lerato Mosele; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2015
Case Number
A351/2014
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From Magistrate Court
Outcome
Appeal against conviction and sentence upheld; conviction and sentence set aside.
Judges
Tsatsi, Kubushi
Legal Topics
Trespass Act, Reverse Onus, Mens Rea, Constitutionality of Statutory Presumptions
Criminal Law Trespass Act Reverse Onus Mens Rea Constitutionality of Statutory Presumptions

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 12 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Elvis Lerato Mosele

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From Magistrate Court

Legal Issues

  1. 1 Whether the appellant committed the offence of trespassing under section 1(1) of the Trespass Act 6 of 1959.
  2. 2 Whether the sentence imposed was appropriate in light of the appellant's circumstances and the evidence.
  3. 3 Whether the reverse onus provision in section 250(1)(d) of the Criminal Procedure Act is constitutional and applicable.

Ratio Decidendi

The court found that the reverse onus provision in section 250(1)(d) of the Criminal Procedure Act is unconstitutional and should not have been relied upon by the trial court. The appellant's version that he had permission from Mr Mtshali to be on the premises was reasonably possibly true, and there was no evidence of intention to contravene the Trespass Act. The absence of mens rea and the failure to prove unlawful entry beyond reasonable doubt meant that the conviction could not stand. Consequently, the appeal against both conviction and sentence succeeded.

Court Disposition

Appeal against conviction and sentence upheld; conviction and sentence set aside.

Orders

  • The conviction and sentence in respect of the charge of trespassing imposed by the court a quo are set aside.