S v Molati (396/2011) [2012] ZAFSHC 84 (3 May 2012)
- Citation
- [2012] ZAFSHC 84
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Lekale, Mhlambi
- Case number
- 396/2011
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Lekale, Mhlambi
- Case number
- 396/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The accused was wrongly charged under the Mining Rights Act No. 20 of 1967, which does not criminalise possession of unpolished diamonds without a licence. The correct statute for such an offence is the Diamonds Act No. 56 of 1986. As the charge did not include the essential elements required for a conviction under the Diamonds Act, the conviction and sentence are invalid and must be set aside. The accused paid the fine and was released immediately after sentencing; therefore, the fine must be refunded.
Court disposition
Conviction and sentence set aside; fine to be refunded to the accused.
Orders
- The conviction and sentence imposed are set aside.
- The amount of the fine shall be refunded to the accused in due course.
02
Material facts
Parties
The State
ApplicantTebello Joseph Molati
RespondentAmounts and remedies
- Fine Imposed: ZAR 2,000
03
Procedural history
Posture
Review Application / Automatic Review
04
Questions and positions
Legal issues
- 01
Whether the charge was correctly brought under the Mining Rights Act No. 20 of 1967.
- 02
Whether the conviction for possession of an unpolished diamond is valid in law under the cited statute.
- 03
Whether a conviction under the Diamonds Act is a competent verdict on a charge under the Mining Rights Act.
Party arguments
- Applicant
- The State prosecuted the accused under the Mining Rights Act No. 20 of 1967 for possession of an unpolished diamond, resulting in conviction and sentence.
- Respondent
- The accused was charged under the wrong statute, as the Mining Rights Act does not criminalise possession of unpolished diamonds without a licence. The Diamonds Act No. 56 of 1986 is the correct statute for such an offence.
05
Court’s reasoning
Legal principles
- 01
Mining Rights Act No. 20 of 1967
A person cannot be convicted under a statute that does not criminalise the conduct in question.
- 02
Diamonds Act No. 56 of 1986
Possession of unpolished or polished diamonds without a licence is an offence under the Diamonds Act No. 56 of 1986.
- 03
Section 270 of the Criminal Procedure Act No. 51 of 1977
A conviction under the Diamonds Act is not a competent verdict on a charge under the Mining Rights Act if the essential elements are not included.
06
Ratio, limits and disposition
Ratio decidendi
The accused was wrongly charged under the Mining Rights Act No. 20 of 1967, which does not criminalise possession of unpolished diamonds without a licence. The correct statute for such an offence is the Diamonds Act No. 56 of 1986. As the charge did not include the essential elements required for a conviction under the Diamonds Act, the conviction and sentence are invalid and must be set aside. The accused paid the fine and was released immediately after sentencing; therefore, the fine must be refunded.
Obiter and limits
- A crime under section 18 read with section 82 of the Diamonds Act is not a competent verdict on a charge under the Mining Rights Act if the essential elements are not included.
- The trial magistrate correctly conceded that the Mining Rights Act does not proscribe possession of diamonds without a licence.
Court disposition
Conviction and sentence set aside; fine to be refunded to the accused.
- The conviction and sentence imposed are set aside.
- The amount of the fine shall be refunded to the accused in due course.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 396/2011
In the review between:
THE
STATE
versus
TEBELLO
JOSEPH MOLATI
_____________
CORAM: LEKALE, J et MHLAMBI, AJ
JUDGMENT BY: LEKALE, J
DELIVERED ON: 3 MAY 2012
[1] The accused, a Lesotho National, was convicted of and sentenced for being in possession of an unpolished diamond in contravention of the Mining Rights Act No. 20 of 1967 (MRA) by the Ficksburg Magistrates’ Court on 27 September 2011. He was sentenced to a R2 000,00 fine or 12 (twelve) months imprisonment.
[2] The matter, eventually, served before my colleague Naidoo AJ on automatic review and the fact that the accused was charged and convicted in terms of MRA for being in possession of diamonds, caused her to direct the following query to the trial magistrate:
“1. Whether the charge is correctly brought in terms of Act 20 of 1967.
Whether the conviction is, therefore, good in law.”
[3] The learned magistrate has since responded conceding that:
“Indeed in my construction of the Mining Rights Act, diamond or uncut or unpolished diamond is not included... It is the Diamonds Act No 56 of 1986 that makes an offence to be in possession of unpolished or polished diamonds as ‘mineral’ without a licence.”
[4] The trial magistrate, further, concludes that both the conviction and the sentence are bad in law for the MRA does not proscribe the possession of polished or unpolished diamonds without a licence.
[5] I am in respectful agreement with the learned magistrate that the accused was wrongly charged, convicted and sentenced. Both the conviction and sentence, therefore, fall to be set aside. In this regard it should be noted that a crime in terms of section 18 read with section 82 of the Diamonds Act is not a competent verdict on a charge brought in terms of Mining Rights Act insofar as the essential elements of a charge involving diamonds are not included in the charge preferred against the accused. (See generally section 270 of the Criminal Procedure Act No. 51 of 1977 as amended.)
[6] I am satisfied from the record that the accused paid the fine and was released immediately after the sentence was imposed.
ORDER:
[7] In the result the conviction and the sentence imposed are set aside.
[8] The amount of the fine shall, therefore, be refunded to the accused in due course.
_____
L.J. LEKALE, J
I concur.
____
J.J. MHLAMBI, AJ
/sp
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