S v Lelala (64/2013) [2013] ZAFSHC 48 (28 March 2013)

S v Lelala (64/2013) [2013] ZAFSHC 48 (28 March 2013)

The court found that the accused was charged and convicted under Act 74 of 1983, which had been repealed and replaced by the Children's Act 38 of 2005. The conviction under the repealed statute was therefore invalid. The court held that it was unnecessary to refer the matter back for a new trial under the existing charge sheet, as it was based on the incorrect statute. Instead, the conviction was set aside, and the State was granted liberty to recharge the accused under the correct provision of the Children's Act if it so chose.

Citation
[2013] ZAFSHC 48
Parties
Applicant: The State; Respondent: Nutricia Lelala
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 March 2013
Case Number
64/2013
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction set aside due to being based on repealed legislation.
Judges
R Jordaan, SPB Hancke
Legal Topics
Child Abuse, Incorrect Charge Sheet, Criminal Procedure Act Section 304, Children S Act Application
Criminal Law Family and Children Child Abuse Incorrect Charge Sheet Criminal Procedure Act Section 304 Children S Act Application

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Nutricia Lelala

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction of the accused under the incorrect statute is valid.
  2. 2 Whether the conviction should be set aside due to the charge being brought under repealed legislation.
  3. 3 Whether the matter should be referred back for a new trial under the correct statute.

Ratio Decidendi

The court found that the accused was charged and convicted under Act 74 of 1983, which had been repealed and replaced by the Children's Act 38 of 2005. The conviction under the repealed statute was therefore invalid. The court held that it was unnecessary to refer the matter back for a new trial under the existing charge sheet, as it was based on the incorrect statute. Instead, the conviction was set aside, and the State was granted liberty to recharge the accused under the correct provision of the Children's Act if it so chose.

Court Disposition

Conviction set aside due to being based on repealed legislation.

Orders

  • The conviction of Nutricia Lelala is set aside.
  • The State is at liberty to recharge the accused under the correct provision of the Children's Act 38 of 2005.