S v Ngake and Another (70/05) [2005] ZANWHC 44 (9 June 2005)

S v Ngake and Another (70/05) [2005] ZANWHC 44 (9 June 2005)

The convictions for dealing in unwrought precious metals were not in accordance with justice because diamonds do not fall within the statutory definition of unwrought precious metals under the Mining Rights Act. The accused should have been charged under the Precious Stones Act. Although the conviction for possession of dagga against Accused No 1 was correct, it formed part of the impugned proceedings and could not be separated. Therefore, all convictions and proceedings were quashed and set aside in the interests of justice.

Citation
[2005] ZANWHC 44
Parties
Applicant: The State; Respondent: Moses Ngake; Respondent: Donald Majoro
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
9 June 2005
Case Number
70/05
Procedural Posture
Review Application / Special Review Under Section 304 a of the Criminal Procedure Act
Outcome
All convictions and proceedings against both accused are quashed and set aside.
Judges
R D Mokgoatlheng, A A Landman
Legal Topics
Review Proceedings, Mining Rights Act, Precious Stones Act, Unlawful Possession of Drugs, Quashing of Conviction
Criminal Law Review Proceedings Mining Rights Act Precious Stones Act Unlawful Possession of Drugs Quashing of Conviction

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Parties

The State

Applicant

Moses Ngake

Respondent

Donald Majoro

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 a of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction for dealing in unwrought precious metals was legally sustainable given the statutory definition.
  2. 2 Whether the proceedings and convictions were in accordance with justice.
  3. 3 Whether the conviction for possession of dagga should stand independently of the flawed proceedings.

Ratio Decidendi

The convictions for dealing in unwrought precious metals were not in accordance with justice because diamonds do not fall within the statutory definition of unwrought precious metals under the Mining Rights Act. The accused should have been charged under the Precious Stones Act. Although the conviction for possession of dagga against Accused No 1 was correct, it formed part of the impugned proceedings and could not be separated. Therefore, all convictions and proceedings were quashed and set aside in the interests of justice.

Court Disposition

All convictions and proceedings against both accused are quashed and set aside.

Orders

  • All convictions relating to both count one (dealing in unwrought precious metals) and count two (possession of dagga) are quashed.
  • The proceedings are set aside in terms of section 304(2)(c) of Act No 51 of 1977.