S v Gabatlhole (B3358/02) [2002] ZANCHC 35; 2004 (2) SACR 270 (NC) (4 December 2002)

S v Gabatlhole (B3358/02) [2002] ZANCHC 35; 2004 (2) SACR 270 (NC) (4 December 2002)

The court found that the failure of the magistrate to inform the unrepresented accused of the reverse onus presumption under section 1(1)(b) read with section 1(2) of the Intimidation Act, 72 of 1982, constituted a procedural irregularity. This irregularity prejudiced the accused and rendered the proceedings in respect of the intimidation charge not in accordance with justice. The conviction on the intimidation charge was therefore set aside. The conviction for housebreaking with intent to steal and attempted theft was confirmed, and the matter was remitted to the regional court for sentencing on that charge.

Citation
[2002] ZANCHC 35
Parties
Applicant: The State; Respondent: Peter Gabatlhole
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
4 December 2002
Case Number
B3358/02
Procedural Posture
Review Application / Special Review
Outcome
Conviction for housebreaking with intent to steal and attempted theft confirmed; conviction for intimidation under section 1(1)(b) of Act 72 of 1982 set aside; matter remitted for sentencing on charge 1.
Judges
SA Majiedt, FD Kgomo
Legal Topics
Intimidation Act 72 of 1982, Reverse Onus Presumption, Unrepresented Accused, Procedural Irregularity
Criminal Law Intimidation Act 72 of 1982 Reverse Onus Presumption Unrepresented Accused Procedural Irregularity

Case Brief

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Parties

The State

Applicant

Peter Gabatlhole

Respondent

Procedural Posture

Review Application / Special Review

Legal Issues

  1. 1 Whether the accused was properly informed of the reverse onus presumption under section 1(1)(b) read with section 1(2) of the Intimidation Act, 72 of 1982.
  2. 2 Whether the failure to inform the unrepresented accused of the shifted burden of proof constitutes a procedural irregularity.
  3. 3 Whether the conviction for intimidation should stand given the procedural irregularity.

Ratio Decidendi

The court found that the failure of the magistrate to inform the unrepresented accused of the reverse onus presumption under section 1(1)(b) read with section 1(2) of the Intimidation Act, 72 of 1982, constituted a procedural irregularity. This irregularity prejudiced the accused and rendered the proceedings in respect of the intimidation charge not in accordance with justice. The conviction on the intimidation charge was therefore set aside. The conviction for housebreaking with intent to steal and attempted theft was confirmed, and the matter was remitted to the regional court for sentencing on that charge.

Court Disposition

Conviction for housebreaking with intent to steal and attempted theft confirmed; conviction for intimidation under section 1(1)(b) of Act 72 of 1982 set aside; matter remitted for sentencing on charge 1.

Orders

  • The accused's conviction on the charge of housebreaking with intent to steal and attempted theft is confirmed.
  • The accused's conviction for contravening section 1(1)(b) of Act 72 of 1982 is set aside.