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South Africa Judgment

Free State High Court, Bloemfontein

S v Mosipili (901/2005) [2005] ZAFSHC 102 (1 September 2005)

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Professional case brief

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Source document

01

Holding and result

The charge sheet failed to mention the statute creating the offence of trespass, which is a statutory offence. This omission rendered the charge sheet fatally defective, as it did not disclose an offence. There is no common law offence of trespassing, and the accused was therefore wrongly convicted and punished. The conviction and sentence must be set aside.

Court disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.

02

Material facts

Parties

THE STATE

Respondent

TSHEDISO PETRUS MOSIPILI

Applicant

03

Procedural history

  1. Posture

    Review Application / High Court Review Under Section 304(4) of the Criminal Procedure Act

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused was charged with 'trespassing' as a common law offence, but the charge sheet failed to reference the relevant statute, rendering the charge vague and excipiable. There is no common law offence of trespassing; it is a statutory offence, and the omission of the Act number means the charge does not disclose an offence.
Respondent
The State maintained that trespass is a recognised offence and did not initially see the need for review. However, upon query, it was conceded that the charge sheet was vague and did not comply with statutory requirements for specifying the Act under which the accused was charged.

05

Court’s reasoning

  1. 01

    Section 84(3) of the Criminal Procedure Act

    Where an accused is charged with a statutory contravention, the charge sheet must mention the number of the Act creating the offence, as required by Section 84(3) of the Criminal Procedure Act.

  2. 02

    Du Toit et al Commentary on the Criminal Procedure Act, paragraphs 14-15

    Omission of the section number may be overlooked if particulars of the contravention remain clear, but omission of the Act itself renders the charge sheet excipiable.

  3. 03

    Hiemstra’s Suid-Afrikaanse Strafproses, 6th edition by Kriegler and Kruger at 240

    There is no common law offence of 'trespassing'; it is a statutory offence.

06

Ratio, limits and disposition

Ratio decidendi

The charge sheet failed to mention the statute creating the offence of trespass, which is a statutory offence. This omission rendered the charge sheet fatally defective, as it did not disclose an offence. There is no common law offence of trespassing, and the accused was therefore wrongly convicted and punished. The conviction and sentence must be set aside.

Obiter and limits

  • Omission of the section number of a statute may sometimes be overlooked if the particulars of the contravention are clear, but omission of the Act itself is fatal to the validity of the charge sheet.

Court disposition

Conviction and sentence set aside.

  • The conviction and sentence are set aside.

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

[2005] ZAFSHC 102

IN THE HIGH COURT

OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Review Case No.: 901/2005

In the case between:

THE STATE

and

TSHEDISO PETRUS

MOSIPILI

CORAM: CILLIé J et H.M. MUSI J

JUDGEMENT: H.M. MUSI J

_____________

DELIVERED ON: 1 SEPTEMBER 2005

[1] When this matter initially came before me for review in terms of Section 304(4) of the Criminal Procedure Act, I raised a query as follows:

¡°Trespass is a recognised offence under our law and I do not follow why it is sought so have the proceedings reviewed. The magistrate must give a full explanation of what transpired necessitating a review.”

In response, the magistrate points out that the real problem is that the charge sheet was vague in that it did not contain a reference to the relevant statute under which the accused was charged, this being a statutory offence. The charge sheet as framed alleges a common law offence of “trespassing” against the accused.

[2] Now, it is so that where an accused is charged with a statutory contravention, the requirements of Section 84(3) of the Criminal Procedure Act will not have been complied with if the charge sheet does not mention the number of the Act creating the offence. See Hiemstra’s Suid-Afrikaanse Strafproses, 6th edition by Kriegler and Kruger at 240. It has also been held that omission of certain details of an offence that would normally be mentioned, such as the number of the section that creates the offence, will be overlooked provided that particulars of the contravention still remain clear. See Du Toit et al Commentary on the Criminal Procedure Act at paragraphs 14-15. However, this applies to omission of sections of the relevant statute and not the omission to mention the Act itself. In casu, the charge sheet omitted to mention the Act creating the offence of trespass, thereby rendering the charge sheet excipiable on the basis that it does not disclose an offence. It was fatally defective, as there is no common law offence such as “trespassing”. The accused was therefore wrongly convicted and punished.

[3] Accordingly the conviction and sentence are set aside.

______

H.M. MUSI, J

I concur.

____

C.B. CILLIé, J

/em

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Authorities

Authorities used by the court

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

Criminal Procedure Act, Section 304(4)

Legislation

Legislation referenced in the available case record.

Criminal Procedure Act, Section 84(3)

Legislation

Legislation referenced in the available case record.

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