S v K T (255/2013) [2013] ZAGPPHC 470 (15 November 2013)
- Citation
- [2013] ZAGPPHC 470
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Ismail, Jordaan E
- Case number
- A935/12
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Ismail, Jordaan E
- Case number
- A935/12
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The accused was charged and convicted under the Corruption Act 94 of 1992, which had been repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004. The charge and conviction under the repealed Act are invalid, as sentencing cannot occur under a statute no longer in force. The conviction must be set aside, and the accused may be charged afresh under the current legislation. The retrial should be conducted before a different magistrate to ensure impartiality and compliance with proper procedure.
Court disposition
Conviction set aside; accused may be re-charged under the current Act and retried before a different magistrate.
Orders
- The conviction is set aside.
- The accused may be charged de novo in terms of the current Act.
- The trial should proceed before a different magistrate than the one who presided during the final trial.
02
Material facts
Parties
The State
ApplicantAseitsiwe Johannes Legong
Respondent03
Procedural history
Posture
Criminal Law Review / Special Review
04
Questions and positions
Legal issues
- 01
Whether the accused was correctly charged and convicted under a repealed statute.
- 02
Whether a conviction under the repealed Corruption Act 94 of 1992 can stand.
- 03
Whether the accused can be sentenced under a repealed Act.
- 04
Whether the accused may be re-charged under the current legislation.
Party arguments
- Applicant
- The State presented evidence through two police officers that the accused left money on the bonnet of his car as a traffic officer was preparing to issue a traffic violation ticket. The officers testified that the accused was warned his conduct was illegal, leading to his arrest and charge under the Corruption Act 94 of 1992.
- Respondent
- The accused initially pleaded guilty to contravening section 1(1)(a) read with section 3 of the Corruption Act 94 of 1992. Upon questioning under section 112 of the Criminal Procedure Act, the plea was altered to not guilty under section 113. The accused gave evidence during the trial but was convicted under the repealed Act.
05
Court’s reasoning
Legal principles
- 01
Prevention and Combating of Corrupt Activities Act 12 of 2004
A person cannot be convicted and sentenced under a statute that has been repealed and is no longer in force.
- 02
Criminal Procedure Act 51 of 1977
Section 270 of the Criminal Procedure Act 51 of 1977 does not apply where the charge and conviction are under a repealed statute that differs substantially from the current law.
06
Ratio, limits and disposition
Ratio decidendi
The accused was charged and convicted under the Corruption Act 94 of 1992, which had been repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004. The charge and conviction under the repealed Act are invalid, as sentencing cannot occur under a statute no longer in force. The conviction must be set aside, and the accused may be charged afresh under the current legislation. The retrial should be conducted before a different magistrate to ensure impartiality and compliance with proper procedure.
Obiter and limits
- The application of section 270 of the Criminal Procedure Act is impossible where the repealed statute differs drastically from the current law.
- The accused's conduct may still constitute an offence under the current anti-corruption legislation, but proper procedure must be followed.
Court disposition
Conviction set aside; accused may be re-charged under the current Act and retried before a different magistrate.
- The conviction is set aside.
- The accused may be charged de novo in terms of the current Act.
- The trial should proceed before a different magistrate than the one who presided during the final trial.
Source and reliance status
North Gauteng High Court, Pretoria
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.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NO: A935/12
DATE: 1 NOVEMBER 2013
In the matter between:
THE STATE
And
ASEITSIWE
JOHANNES LEGONG
JUDGMENT
Ismail J:
[1] This matter was referred to this court by means of a special review at the request of the presiding magistrate.
[2] The magistrate in the letter to the reviewing judge stated the following:
“During the sentence procedure the magistrate realized that the accused was incorrectly charged and convicted of the provisions of section 1 (a) of the Corruption Act, Act 94 of 1992, repealed by The Prevention of Combating of Corrupt Activities Act 12 of 2004...
...as the charge on which the accused was convicted differs drastically from The Prevention of Combating of Corrupt Activities Act 12 of 2004 that will render the application of section 270 of the Criminal Procedure Act 51 of 1977 impossible.”
[3] Initially the accused pleaded guilty to the contravention of section 1(1) (a) read with section 3 of the Corruption Act 94 of 1992.
[4] After questioning the accused in terms of section 112 of the Criminal Procedure Act (CPA) the magistrate altered the plea to not guilty in terms of section 113 of the CPA.
[5] Evidence was led of two policemen who testified that the accused left money on the bonnet of his car, as the police officer took out the book to give him a traffic violation ticket. He was told “do you know what you are doing is illegal” the accused was consequently arrested and charged.
[6] Pursuant to the traffic officers testifying on behalf of the state and the accused also giving evidence during the trial, the accused was convicted of the charge.
[7] The matter was then sent on review with the request as set out in paragraph
[2] above.
[8] It is clear that the accused was charged and found guilty of an offence in terms of the repealed Act, accordingly I am of the view that the conviction should be set aside as he cannot be sentenced in terms of that Act.
[9] In the circumstances I make the following order:
[9.1] the conviction is set aside;
[9.2] the accused may be charged de novo in terms of the current Act;
[9.3] the trial should proceed before a different magistrate than the one who presided during a final trial.
ISMAIL MHE
JUDGE OF THE HIGH
COURT
I agree
JORDAAN E
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