Ramos v S (A83/04) [2005] ZAWCHC 3; 2005 (2) SACR 459 (C); [2005] 2 All SA 193 (C) (19 January 2005)

Ramos v S (A83/04) [2005] ZAWCHC 3; 2005 (2) SACR 459 (C); [2005] 2 All SA 193 (C) (19 January 2005)

The court held that particulars supplied to the charge sheet bind the State only for the purposes of the criminal trial and do not constitute admissions for subsequent section 34 proceedings. The section 34 enquiry is distinct from the criminal trial, and the magistrate was entitled to consider all evidence, including expert testimony, in determining the nature of the seized devices. The onus rests on the State to prove, on a balance of probabilities, that the appellant was not lawfully entitled to possess the devices. The State discharged this onus through expert evidence that the machines were unlawful gambling devices capable of being exchanged for value, and the appellant did not...

Citation
[2005] ZAWCHC 3
Parties
Appellant: Tony Castillo Ramos; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 January 2005
Case Number
A83/04
Procedural Posture
Criminal Appeal / Appeal Against Magistrate's Order Refusing Release of Seized Gambling Devices After Acquittal
Outcome
Appeal dismissed. Gambling machines forfeited to the State.
Judges
N J Yekiso, D W Gess
Legal Topics
Forfeiture of Property, Criminal Procedure Act Section 34, Gambling Legislation, Onus of Proof, Appealability of Disposal Orders
Criminal Law Land and Property Forfeiture of Property Criminal Procedure Act Section 34 Gambling Legislation Onus of Proof Appealability of Disposal Orders

Case Brief

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Parties

Tony Castillo Ramos

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Magistrate's Order Refusing Release of Seized Gambling Devices After Acquittal

Legal Issues

  1. 1 Whether the State was bound by particulars supplied to the charge sheet in subsequent section 34 proceedings.
  2. 2 Which party bears the onus of proof in section 34 proceedings regarding lawful possession of seized articles.
  3. 3 Whether the appellant was entitled to the return of the seized gambling devices or whether forfeiture to the State was correct.

Ratio Decidendi

The court held that particulars supplied to the charge sheet bind the State only for the purposes of the criminal trial and do not constitute admissions for subsequent section 34 proceedings. The section 34 enquiry is distinct from the criminal trial, and the magistrate was entitled to consider all evidence, including expert testimony, in determining the nature of the seized devices. The onus rests on the State to prove, on a balance of probabilities, that the appellant was not lawfully entitled to possess the devices. The State discharged this onus through expert evidence that the machines were unlawful gambling devices capable of being exchanged for value, and the appellant did not...

Court Disposition

Appeal dismissed. Gambling machines forfeited to the State.

Orders

  • The appeal is dismissed.
  • The gambling machines seized by the SA Police Service from the appellant are hereby declared forfeited to the State.