S v Benya - Review Judgment (CA&R 140/2023) [2023] ZAECMKHC 105 (19 September 2023)

S v Benya - Review Judgment (CA&R 140/2023) [2023] ZAECMKHC 105 (19 September 2023)

The magistrate erred in charging and convicting the accused under section 17(b) of the Domestic Violence Act and in referencing section 17(1) in the sentence, as the alleged offence occurred before the amendment of the Act. The correct section applicable was the unamended section 17(a). The charge sheet cannot be amended after judgment, but section 270 of the Criminal Procedure Act allows for a competent verdict where the essential elements of the offence proved are included in the charge. The accused was not prejudiced by the erroneous references, and the conviction and sentence are altered to reflect the correct section, namely section 17(a) of the Domestic Violence Act.

Citation
[2023] ZAECMKHC 105
Parties
Applicant: The State; Respondent: Akhona Benya
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
19 September 2023
Case Number
CA&R 140/2023
Procedural Posture
Criminal Review / Review Judgment
Outcome
Conviction and sentence altered to reflect contravention of section 17(a) of the Domestic Violence Act; sentence suspended on condition of no further contravention during suspension period.
Judges
GH Bloem, BR Tokota
Legal Topics
Domestic Violence Act, Protection Order Contravention, Competent Verdict, Amendment of Charge Sheet
Criminal Law Family and Children Domestic Violence Act Protection Order Contravention Competent Verdict Amendment of Charge Sheet

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Parties

The State

Applicant

Akhona Benya

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the accused was correctly charged and convicted under the relevant section of the Domestic Violence Act.
  2. 2 Whether the sentence imposed referred to the correct section of the Domestic Violence Act.
  3. 3 Whether the charge sheet can be amended after judgment has been delivered.

Ratio Decidendi

The magistrate erred in charging and convicting the accused under section 17(b) of the Domestic Violence Act and in referencing section 17(1) in the sentence, as the alleged offence occurred before the amendment of the Act. The correct section applicable was the unamended section 17(a). The charge sheet cannot be amended after judgment, but section 270 of the Criminal Procedure Act allows for a competent verdict where the essential elements of the offence proved are included in the charge. The accused was not prejudiced by the erroneous references, and the conviction and sentence are altered to reflect the correct section, namely section 17(a) of the Domestic Violence Act.

Court Disposition

Conviction and sentence altered to reflect contravention of section 17(a) of the Domestic Violence Act; sentence suspended on condition of no further contravention during suspension period.

Orders

  • The accused is convicted of the offence contemplated in section 17(a) of the Domestic Violence Act 116 of 1998, in that he contravened the prohibitions imposed on him in a protection order issued on 29 March 2020.
  • The accused is sentenced to pay a fine of R4 000 or to undergo imprisonment for 12 months. The entire sentence is suspended for five years on condition that the accused is not convicted of a contravention of section 17(a) of the Domestic Violence Act, committed during the period of suspension.