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South Africa Judgment

Free State High Court, Bloemfontein

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

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Professional case brief

Research organized from the available case record

Source document

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

Applicant

Tebello Joseph Molati

Respondent

Amounts and remedies

  • Fine Imposed: ZAR 2,000

03

Procedural history

  1. Posture

    Review Application / Automatic Review

04

Questions and positions

Legal issues

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

  1. 01

    Mining Rights Act No. 20 of 1967

    A person cannot be convicted under a statute that does not criminalise the conduct in question.

  2. 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.

  3. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2012] ZAFSHC 84

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Mining Rights Act No. 20 of 1967

Legislation

Legislation referenced in the available case record.

Diamonds Act No. 56 of 1986

Legislation

Legislation referenced in the available case record.

Criminal Procedure Act No. 51 of 1977

Legislation

Legislation referenced in the available case record.

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