S v Adams; S v Molejane (62/2013, 63/2013) [2013] ZAFSHC 43 (4 April 2013)
- Citation
- [2013] ZAFSHC 43
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Lekale, Mhlambi
- Case number
- 62/2013, 63/2013
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Lekale, Mhlambi
- Case number
- 62/2013, 63/2013
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that, in the absence of any legislative transitional provision to the contrary, a repealed law is no law at all for the purposes of legal posterity. The Child Care Act was repealed by the Children’s Act prior to the commission of the offences in both cases. As such, the convictions and sentences under the repealed Act are invalid. The charges should have been framed under the Children’s Act, which was the applicable law at the time the offences were committed. The convictions and sentences were accordingly set aside, and the matters were remitted for fresh trials before different magistrates.
Court disposition
Convictions and sentences set aside; matters remitted for fresh trials before different magistrates.
Orders
- The conviction and sentence in case no 62/2013 are set aside.
- The matter in case no 62/2013 is remitted to the Magistrate’s Court for a fresh trial before another trial Magistrate.
- The conviction and sentence in case no 63/2013 are set aside.
- The matter in case no 63/2013 is remitted to the Magistrate’s Court for a trial de novo before another trial Magistrate.
02
Material facts
Parties
The State
ApplicantMiekie Adams
RespondentKatrina Maditaba Molejane
Respondent03
Procedural history
Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether convictions and sentences under the repealed Child Care Act are valid for offences committed after its repeal.
- 02
Whether the absence of transitional provisions in the Children’s Act affects the validity of charges and convictions under the repealed Act.
Party arguments
- Applicant
- The Senior Magistrate submitted that the convictions and sentences should be set aside because the accused were charged and convicted under the Child Care Act, which had been repealed by the Children’s Act prior to the commission of the offences. There were no transitional provisions preserving the repealed law for future conduct, and therefore, the charges should have been framed under the Children’s Act.
- Respondent
- The accused did not make formal submissions on review, but the record reflects that they were convicted and sentenced under a law that was no longer in force at the time of the offences. No argument was advanced to justify the application of the repealed Child Care Act.
05
Court’s reasoning
Legal principles
- 01
Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) at para [8]
A repealed law cannot sustain a conviction or justify punishment for conduct occurring after its repeal, unless a transitional provision expressly preserves its application.
- 02
nullum crimen sine lege; nulla poena sine lege
The principle of legality requires that there can be no crime or punishment without a law.
06
Ratio, limits and disposition
Ratio decidendi
The court held that, in the absence of any legislative transitional provision to the contrary, a repealed law is no law at all for the purposes of legal posterity. The Child Care Act was repealed by the Children’s Act prior to the commission of the offences in both cases. As such, the convictions and sentences under the repealed Act are invalid. The charges should have been framed under the Children’s Act, which was the applicable law at the time the offences were committed. The convictions and sentences were accordingly set aside, and the matters were remitted for fresh trials before different magistrates.
Obiter and limits
- The vigilance of the Senior Magistrate in identifying the discrepancy is commended.
- The principle of legality is foundational to the criminal justice system and must be strictly observed.
Court disposition
Convictions and sentences set aside; matters remitted for fresh trials before different magistrates.
- The conviction and sentence in case no 62/2013 are set aside.
- The matter in case no 62/2013 is remitted to the Magistrate’s Court for a fresh trial before another trial Magistrate.
- The conviction and sentence in case no 63/2013 are set aside.
- The matter in case no 63/2013 is remitted to the Magistrate’s Court for a trial de novo before another trial Magistrate.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 62/2013
In the matter between:
THE STATE
and
MIEKIE ADAMS
Review No.: 63/2013
KATRINA MADITABA
MOLEJANE
___________
CORAM: LEKALE, J et MHLAMBI, AJ
JUDGMENT BY: LEKALE, J
DELIVERED ON: 4 APRIL 2013
[1] The two matters serve before us on special review in terms of section 304(4) of the Criminal Procedure Act, no 51 of 1977 (the “CPA”).
[2] In both matters the trial Magistrate convicted and sentenced the accused under Child Care Act, No 74 of 1983 (The CCA) on the 14th June 2012 and the 21 June 2012 respectively.
[3] The offence in each case was committed after the 1st April 2010 viz. the date on which the Children’s Act, No 38 of 2005 (The CA) came into operation and effectively repealed the CCA. The offence in the first case was committed during 2011 while the crime in the second case was committed during 2012.
[4] The above discrepancies caught the vigilant eye of the Senior Magistrate who, thereupon, took the two matters on special review requesting the reviewing Judge to, inter alia:
“(a) set aside the convictions and sentences;
(b) order the cases to start de novo.”
[5] We are in respectful agreement with the learned Senior Magistrate that the convictions and sentences in the two matters fall to be set aside because, in the absence of any legislative transitional provision to the contrary, a repealed law is no law at all for the purposes of legal posterity. It can, as such, not sustain a conviction in so far as, in law, there can be no crime without a law. It can, further, not justify punishment because there can be no punishment without a law. These principles, expressed in the maxims nullum crimen sine lege and nulla poena sine lege, are reflections of the principle of legality in our criminal justice system. (See Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) at para [8])
[6] The CA contains no such provisions which preserve, for future conduct, those sections of the CCA in terms of which the accused in each case was charged and convicted. The charges should, thus, have been framed under the CA, as the law applicable on the dates when the offences were committed.
ORDER:
[7] Ad case no 62/2013:
(a) The conviction and sentence are set aside;
(b)The matter is remitted to the Magistrate’s Court for a
fresh trial before another trial Magistrate.
[8] Ad case no 63/2013:
(b) The matter is remitted to the Magistrate’s Court for a trial de novo before another trial Magistrate.
______
L. J. LEKALE, J
I concur.
_____
J.J. MHLAMBU, AJ
/EB
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