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

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

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.

Citation
[2005] ZAFSHC 102
Parties
Respondent: THE STATE; Applicant: TSHEDISO PETRUS MOSIPILI
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 September 2005
Case Number
901/2005
Procedural Posture
Review Application / High Court Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction and sentence set aside.
Judges
H.M. Musi, C.B. Cillié
Legal Topics
Defective Charge Sheet, Statutory Offence, Criminal Procedure Act Section 84, Trespass
Criminal Law Defective Charge Sheet Statutory Offence Criminal Procedure Act Section 84 Trespass

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Parties

THE STATE

Respondent

TSHEDISO PETRUS MOSIPILI

Applicant

Procedural Posture

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

Legal Issues

  1. 1 Whether the charge sheet was fatally defective for failing to mention the statute creating the offence.
  2. 2 Whether the accused was properly convicted of trespassing as a common law offence.

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.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence are set aside.