S v Makola (43/2020; RCN 32/19) [2020] ZALMPPHC 79 (9 September 2020)

S v Makola (43/2020; RCN 32/19) [2020] ZALMPPHC 79 (9 September 2020)

The court found that the accused's convictions for intimidation under section 1(1)(b) of the Intimidation Act 72 of 1982 must be set aside because the Constitutional Court declared that provision unconstitutional and invalid in the Moyo case. The order of invalidity operates retrospectively to pending trials and appeals where the right of appeal has not yet been exhausted. Since the accused had been convicted but not yet sentenced, his trial was not finalized and he had not exercised his right of appeal. Therefore, it would not be in accordance with the administration of justice to proceed with sentencing on the intimidation counts. The convictions for intimidation are reviewed and set...

Citation
[2020] ZALMPPHC 79
Parties
Applicant: The State; Respondent: Motsedi Bushy Makola
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
9 September 2020
Case Number
43/2020; RCN 32/19
Procedural Posture
Criminal Review / Special Review After Conviction, Before Sentencing
Outcome
Convictions for intimidation set aside; matter remitted for sentencing on crimen injuria.
Judges
MF Kganyago, MV Semenya
Legal Topics
Intimidation Act Unconstitutionality, Retrospective Application of Invalidity, Sentencing Procedure, Crimen Injuria
Criminal Law Intimidation Act Unconstitutionality Retrospective Application of Invalidity Sentencing Procedure Crimen Injuria

Case Brief

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Parties

The State

Applicant

Motsedi Bushy Makola

Respondent

Procedural Posture

Criminal Review / Special Review After Conviction, Before Sentencing

Legal Issues

  1. 1 Does the Constitutional Court's declaration of invalidity of section 1(1)(b) of the Intimidation Act 72 of 1982 apply retrospectively to the accused's pending sentencing?
  2. 2 Should the convictions for intimidation be set aside in light of the Moyo judgment?
  3. 3 Is it in accordance with the administration of justice to proceed with sentencing on the intimidation counts?

Ratio Decidendi

The court found that the accused's convictions for intimidation under section 1(1)(b) of the Intimidation Act 72 of 1982 must be set aside because the Constitutional Court declared that provision unconstitutional and invalid in the Moyo case. The order of invalidity operates retrospectively to pending trials and appeals where the right of appeal has not yet been exhausted. Since the accused had been convicted but not yet sentenced, his trial was not finalized and he had not exercised his right of appeal. Therefore, it would not be in accordance with the administration of justice to proceed with sentencing on the intimidation counts. The convictions for intimidation are reviewed and set...

Court Disposition

Convictions for intimidation set aside; matter remitted for sentencing on crimen injuria.

Orders

  • The conviction in respect of two counts of contravention of section 1(1)(b) of Act 72 of 1982 are reviewed and set aside.
  • The matter is remitted to the trial court to proceed with the sentencing proceedings on the count of crimen injuria.