S v Legong (A893/2013) [2013] ZAGPPHC 322 (1 November 2013)

S v Legong (A893/2013) [2013] ZAGPPHC 322 (1 November 2013)

The accused was charged and convicted under the Corruption Act 94 of 1992, which had been repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004. The charge under the repealed Act differs materially from the provisions of the new Act, rendering the application of section 270 of the Criminal Procedure Act impossible. As a result, the conviction cannot stand, and the accused cannot be sentenced under the repealed statute.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.

Citation
[2013] ZAGPPHC 322
Parties
Applicant: The State; Respondent: Aseitsiwe Johannes Legong
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 November 2013
Case Number
A893/2013
Procedural Posture
Criminal Review / Special Review After Conviction
Outcome
Conviction set aside; accused may be charged de novo under the current Act.
Judges
Ismail Mthe, Jordaan E
Legal Topics
Corruption, Repeal of Statute, Charging Incorrect Statute, Criminal Procedure Act, De Novo Trial
Criminal Law Corruption Repeal of Statute Charging Incorrect Statute Criminal Procedure Act De Novo Trial

Case Brief

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Parties

The State

Applicant

Aseitsiwe Johannes Legong

Respondent

Procedural Posture

Criminal Review / Special Review After Conviction

Legal Issues

  1. 1 Whether the accused was lawfully convicted under a repealed statute.
  2. 2 Whether the conviction under the Corruption Act 94 of 1992 is valid after its repeal.
  3. 3 Whether the accused can be sentenced under the repealed Act.

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The accused was charged and convicted under the Corruption Act 94 of 1992, which had been repealed by the Prevention and Combating of Corrupt Activities Act 12 of 2004. The charge under the repealed Act differs materially from the provisions of the new Act, rendering the application of section 270 of the Criminal Procedure Act impossible. As a result, the conviction cannot stand, and the accused cannot be sentenced under the repealed statute.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.

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.