S v Legong (A893/2013) [2013] ZAGPPHC 322 (1 November 2013)
- Citation
- [2013] ZAGPPHC 322
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Ismail Mthe, Jordaan E
- Case number
- A893/2013
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Ismail Mthe, Jordaan E
- Case number
- A893/2013
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The accused was charged and convicted under the Corruption Act 94 of 1992, which had been repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004. The charge under the repealed Act differs materially from the provisions of the new Act, rendering the application of section 270 of the Criminal Procedure Act impossible. As a result, the conviction cannot stand, and the accused cannot be sentenced under the repealed statute. The proper course is to set aside the conviction and permit the State to charge the accused afresh under the current legislation, with the trial to be conducted before a different magistrate.
Court disposition
Conviction set aside; accused may be charged de novo under the current Act.
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 Review / Special Review After Conviction
04
Questions and positions
Legal issues
- 01
Whether the accused was lawfully convicted under a repealed statute.
- 02
Whether the conviction under the Corruption Act 94 of 1992 is valid after its repeal.
- 03
Whether the accused can be sentenced under the repealed Act.
- 04
Whether a de novo trial under the current Act is permissible.
Party arguments
- Applicant
- The State led evidence that the accused attempted to bribe a police officer by leaving money on the bonnet of his car during a traffic stop. The State argued that this conduct constituted an offence under section 1(1)(a) of the Corruption Act 94 of 1992.
- Respondent
- The accused pleaded guilty initially but, after questioning under section 112 of the Criminal Procedure Act, the plea was altered to not guilty. The accused gave evidence denying the intention to bribe, but was nonetheless convicted under the repealed Act.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 replaced by a new Act.
- 02
Criminal Procedure Act 51 of 1977
Section 270 of the Criminal Procedure Act does not apply where the charge under the repealed Act differs substantially from the new Act.
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 under the repealed Act differs materially from the provisions of the new Act, rendering the application of section 270 of the Criminal Procedure Act impossible. As a result, the conviction cannot stand, and the accused cannot be sentenced under the repealed statute. The proper course is to set aside the conviction and permit the State to charge the accused afresh under the current legislation, with the trial to be conducted before a different magistrate.
Obiter and limits
- The magistrate acted correctly in referring the matter for special review upon realizing the error in the charge.
- It is essential that charges are brought under the correct and current statutory provisions to ensure fairness and legality in criminal proceedings.
Court disposition
Conviction set aside; accused may be charged de novo under the current Act.
- 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
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE NO: A935/12
DATE: 01/11/2013
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
MTHE
JUDGE
OF THE HIGH COURT
I agree
JORDAAN E
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