S v Motloi and Another (42/2014) [2014] ZAFSHC 16 (28 February 2014)
- Citation
- [2014] ZAFSHC 16
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Van Zyl, Reinders
- Case number
- 42/2014
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Van Zyl, Reinders
- Case number
- 42/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The convictions on both counts were set aside because count 1 was based on a repealed statute, rendering the conviction irregular. Count 2 was closely linked to count 1, and separate sentencing by different courts would likely result in injustice. Therefore, both convictions were set aside and the matter was remitted for retrial before a different magistrate under the correct statutory provisions.
Court disposition
Both convictions are set aside and the matter is remitted for retrial before a different magistrate.
Orders
- The convictions of both accused on charge 1 and charge 2 are set aside.
- The matter is referred back to the court a quo for both accused to be recharged and prosecuted de novo before a different presiding magistrate.
02
Material facts
Parties
The State
ApplicantLetonyana Motloi
Respondent Counsel: Mr MokoenaMatase Motjokoseu
Respondent Counsel: Mr Mokoena03
Procedural history
Posture
Criminal Review / Special Review Under Section 304 a of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether the convictions on both counts were valid given the use of a repealed statute for count 1.
- 02
Whether the convictions should be set aside due to procedural irregularity.
- 03
Whether the matter should be remitted for retrial before a different magistrate.
Party arguments
- Applicant
- The State prosecuted both accused on two counts: corruption under the repealed Corruption Act 94 of 1992 and illegal foreigner under the Immigration Act 13 of 2002. The accused pleaded guilty via written statements under section 112(2) of the Criminal Procedure Act. The magistrate convicted both accused but later realized count 1 was based on a repealed statute and recommended setting aside both convictions and remitting the matter for retrial under the correct statute.
- Respondent
- Both accused, represented by Mr Mokoena, pleaded guilty to both charges. No further substantive argument was advanced by the respondents, as the irregularity was identified by the magistrate post-conviction.
05
Court’s reasoning
Legal principles
- 01
Section 304A of the Criminal Procedure Act, 51 of 1977
A conviction based on a repealed statute constitutes a material irregularity and cannot stand.
- 02
Precedent and judicial discretion as referenced in the judgment
Where charges are closely linked, justice may require both convictions to be set aside and the matter to be retried before a different judicial officer.
06
Ratio, limits and disposition
Ratio decidendi
The convictions on both counts were set aside because count 1 was based on a repealed statute, rendering the conviction irregular. Count 2 was closely linked to count 1, and separate sentencing by different courts would likely result in injustice. Therefore, both convictions were set aside and the matter was remitted for retrial before a different magistrate under the correct statutory provisions.
Obiter and limits
- The presiding magistrate's diligence in identifying the statutory irregularity is commended.
- Justice requires that closely linked charges be dealt with together to avoid inconsistent or unjust outcomes.
Court disposition
Both convictions are set aside and the matter is remitted for retrial before a different magistrate.
- The convictions of both accused on charge 1 and charge 2 are set aside.
- The matter is referred back to the court a quo for both accused to be recharged and prosecuted de novo before a different presiding magistrate.
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
IN THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION, BLOEMFONTEIN
Review No. : 42/2014
In the review between
THE STATE
versus
LETONYANA MOTLOI
MATASE MOTJOKOSEU
CORAM: VAN ZYL, J et REINDERS, AJ
JUDGEMENT BY: VAN ZYL, J
DELIVERED ON: 28 FEBRUARY 2014
[1] This is a special review in accordance with the provisions of section 304A of the Criminal Procedure Act, 51 of 1977.
[2] The presiding magistrate, C.M. Mokgotho, set out the relevant facts in a clearly written, detailed letter addressed to the Registrar of this Court. I therefore deem it apposite to quote the contents of the said letter:
“The two accused appeared before court on two counts. They were legally represented by Mr Mokoena from Justice Centre: Ladybrand.
The charges against the two accused were as follows:
Count 1: Corruption - giving a benefit in contravention of the provisions of Section 1(1 )(a) read with Section 3 of the Corruption Act 94 of 1992.
Count 2: Illegal Foreigner in contravention of the Immigration Act 13 of 2002 as amended by Section 45(1 )(a) of Act 19 of 2004.
I took the pleas of both accused in respect of both charges preferred by the State.
Mr Mokoena who represented both accused tendered a written statement in terms of Section 112(2) of Act 51 of 1977 on all the charges preferred by the State.
I convicted both accused on both counts in accordance with their pleas.
I did not impose any sentence to both accused and the matter was remanded for sentence.
The conviction on count two (2) is in order.
The irregularity I committed was that as I was researching for appropriate punishment, it came to my notice that the Statutory Provision that the Prosecution used or referred to on count one was from the Act that was repealed in its totality.
Therefore, the conviction of both accused on count No. 1 is incorrect and should be set aside.
Furthermore, as count 2 is closely linked to count 1, it may also be set aside.
May the matter be remitted back to Court for both accused to be re-charged de novo before another judicial officer, in Count 1, the accused should have been charged in Contravention of Section 21 read with Section 26 of Act 12 of 2004 (Prevention and Combating of Corrupt Activities, Act No. 12 of 2004).” (sic)
[3] I agree that the conviction on count 2, being a conviction in terms of an Act which has been repealed, indeed constitutes an irregularity and should be set aside.
[4] From my reading of the details pertaining to the two counts, it is evident that the said counts are in fact closely linked as stated by the presiding magistrate. If the convictions on count 1 are not set aside and count 2 is to be dealt with by a different, newly constituted Court, it will have the consequential result that should the two accused be convicted on count 1 as well, two separate
sentences on the respective charges will be imposed by the two different Courts. This will probably result in an injustice towards
the two accused. I consequently agree with the presiding magistrate that it will be in accordance with justice for the convictions on count 2 to also be set aside.
[5] I therefore make the following order:
The convictions of both accused on charge 1 and charge 2, are set aside.
The matter is referred back to the court a quo for both accused to be recharged and to be prosecuted c/e novo before a different presiding magistrate.
C. VAN ZYL, J
I concur.
C. REINDERS,AJ
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