S v Mohumi (CA 80/08) [2008] ZANWHC 40 (1 November 2008)

S v Mohumi (CA 80/08) [2008] ZANWHC 40 (1 November 2008)

The court found that the presiding officer's reference to Part III of Schedule 2 was a genuine error and did not reflect his intention, as the evidence supported a conviction under Part I. The mistake was only realized after a reasonable time had lapsed, making it impossible for the magistrate to correct it under section 176 of the Criminal Procedure Act. The court therefore set aside the original conviction and substituted it with a conviction under Part I of Schedule 2 to Act 105 of 1977, and referred the matter back for sentencing.

Citation
[2008] ZANWHC 40
Parties
Applicant: The State; Respondent: Dichaba Mohumi
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
1 November 2008
Case Number
CA 80/08
Procedural Posture
Criminal Review / Special Review After Conviction
Outcome
Conviction under Part III of Schedule 2 set aside and substituted with conviction under Part I of Schedule 2 to Act 105 of 1977; matter referred back for sentencing.
Judges
A M Kgoele, R D Hendricks
Legal Topics
Rape, Criminal Law Amendment Act, Judicial Error, Functus Officio, Amendment of Judgment
Criminal Law Rape Criminal Law Amendment Act Judicial Error Functus Officio Amendment of Judgment

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Dichaba Mohumi

Respondent

Procedural Posture

Criminal Review / Special Review After Conviction

Legal Issues

  1. 1 Whether the conviction was correctly recorded under the appropriate part of Schedule 2 to Act 105 of 1977.
  2. 2 Whether the presiding officer could amend the judgment after realizing the error.
  3. 3 Whether the error was a slip of the tongue or a substantive mistake.

Ratio Decidendi

The court found that the presiding officer's reference to Part III of Schedule 2 was a genuine error and did not reflect his intention, as the evidence supported a conviction under Part I. The mistake was only realized after a reasonable time had lapsed, making it impossible for the magistrate to correct it under section 176 of the Criminal Procedure Act. The court therefore set aside the original conviction and substituted it with a conviction under Part I of Schedule 2 to Act 105 of 1977, and referred the matter back for sentencing.

Court Disposition

Conviction under Part III of Schedule 2 set aside and substituted with conviction under Part I of Schedule 2 to Act 105 of 1977; matter referred back for sentencing.

Orders

  • The conviction of the accused of rape as referred to in Part III of Schedule 2 to Act 105 of 1977 is set aside and substituted with a conviction of rape as referred to in Part I of Schedule 2 to Act 105 of 1977.
  • The matter is referred back to the trial court to determine a proper sentence for the accused.