S v Makeka (508/2010) [2010] ZAFSHC 156 (3 December 2010)

S v Makeka (508/2010) [2010] ZAFSHC 156 (3 December 2010)

The magistrate erred in making a forfeiture order without giving the accused an opportunity to address the court on the matter, as required by the audi alteram partem principle and established case law. There was no evidence regarding the value of the vehicle or its potential future use in criminal activity, nor were the interests of the accused's mother, the alleged owner, considered. The forfeiture order was therefore disproportionate and procedurally flawed. The convictions and sentence are confirmed, but the forfeiture order in respect of the vehicle is set aside and the matter is referred back to the magistrate for proper consideration in accordance with the principles set out in...

Citation
[2010] ZAFSHC 156
Parties
Applicant: THE STATE; Respondent: LEETO MAKEKA
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 December 2010
Case Number
508/2010
Procedural Posture
Criminal Review / Automatic Review After Conviction and Sentencing
Outcome
Convictions and sentence confirmed; forfeiture order in respect of the vehicle set aside and remitted for reconsideration.
Judges
C.J. Musi, B.C. Mocumie
Legal Topics
Forfeiture of Property, Audi Alteram Partem, Sentencing Principles, Criminal Procedure Act Section 35
Criminal Law Civil Procedure Forfeiture of Property Audi Alteram Partem Sentencing Principles Criminal Procedure Act Section 35

Case Brief

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Parties

THE STATE

Applicant

LEETO MAKEKA

Respondent

Procedural Posture

Criminal Review / Automatic Review After Conviction and Sentencing

Legal Issues

  1. 1 Whether the magistrate was correct in ordering forfeiture of the vehicle, saw, and bolt-cutter to the State without hearing the accused.
  2. 2 Whether the magistrate complied with section 35(1)(a) of the Criminal Procedure Act when making the forfeiture order.
  3. 3 Whether the interests of the accused's mother, as the alleged owner of the vehicle, were properly considered.

Ratio Decidendi

The magistrate erred in making a forfeiture order without giving the accused an opportunity to address the court on the matter, as required by the audi alteram partem principle and established case law. There was no evidence regarding the value of the vehicle or its potential future use in criminal activity, nor were the interests of the accused's mother, the alleged owner, considered. The forfeiture order was therefore disproportionate and procedurally flawed. The convictions and sentence are confirmed, but the forfeiture order in respect of the vehicle is set aside and the matter is referred back to the magistrate for proper consideration in accordance with the principles set out in...

Court Disposition

Convictions and sentence confirmed; forfeiture order in respect of the vehicle set aside and remitted for reconsideration.

Orders

  • The convictions and sentence are confirmed.
  • The forfeiture order in respect of the vehicle is set aside and the matter is referred back to the magistrate to deal therewith as set out in this judgment.