S v Molati (396/2011) [2012] ZAFSHC 84 (3 May 2012)

S v Molati (396/2011) [2012] ZAFSHC 84 (3 May 2012)

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.

Citation
[2012] ZAFSHC 84
Parties
Applicant: The State; Respondent: Tebello Joseph Molati
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 May 2012
Case Number
396/2011
Procedural Posture
Review Application / Automatic Review
Outcome
Conviction and sentence set aside; fine to be refunded to the accused.
Judges
Lekale, Mhlambi
Legal Topics
Incorrect Charge, Competent Verdict, Mining Rights Act, Diamonds Act, Possession of Diamonds
Criminal Law Incorrect Charge Competent Verdict Mining Rights Act Diamonds Act Possession of Diamonds

Case Brief

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Parties

The State

Applicant

Tebello Joseph Molati

Respondent

Procedural Posture

Review Application / Automatic Review

Legal Issues

  1. 1 Whether the charge was correctly brought under the Mining Rights Act No. 20 of 1967.
  2. 2 Whether the conviction for possession of an unpolished diamond is valid in law under the cited statute.
  3. 3 Whether a conviction under the Diamonds Act is a competent verdict on a charge under the Mining Rights Act.

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.

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.