S v Ngalo (133/2011) [2011] ZAFSHC 96 (21 April 2011)
- Citation
- [2011] ZAFSHC 96
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Van der Merwe, C J Musi
- Case number
- 133/2011
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Van der Merwe, C J Musi
- Case number
- 133/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the conviction and sentence for theft on count 2 were proper and in accordance with justice. However, the conviction and sentence for contravention of section 82 of Act 129 of 1993 were a glaring and unexplained error, as the accused had already been discharged on that count under section 174 of the Criminal Procedure Act. The court set aside the conviction and sentence for contravention of section 82, confirming only the conviction and sentence for theft.
Court disposition
Conviction and sentence for theft on count 2 confirmed; conviction and sentence for contravention of section 82 of Act 129 of 1993 set aside.
Orders
- The conviction and sentence in respect of count 2 as charged are confirmed.
- The conviction and sentence in respect of the contravention of section 82 of Act 129 of 1993 are set aside.
02
Material facts
Parties
THE STATE
ApplicantBENJAMIN MONGEZI NGALO
Respondent03
Procedural history
Posture
Criminal Review / Special Review After Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the conviction and sentence for contravention of section 82 of Act 129 of 1993 was valid after the accused was discharged on that count.
- 02
Whether the conviction and sentence for theft on count 2 was in accordance with justice.
Party arguments
- Applicant
- The trial magistrate requested that the conviction and sentence for contravention of section 82 of Act 129 of 1993 be set aside, as the accused had already been discharged on that count under section 174 of the Criminal Procedure Act. The conviction and sentence for theft on count 2 were not challenged and were considered just.
- Respondent
- The accused did not present specific arguments on review, but was discharged on counts 1 and 3 under section 174, and only testified in his own defence regarding count 2. The error in convicting and sentencing him for count 1 after discharge was not explained.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Act, section 174
An accused who has been discharged under section 174 of the Criminal Procedure Act cannot be convicted on that count.
- 02
General Law Amendment Act 129 of 1993
Convictions and sentences must be in accordance with justice and the procedural requirements of the law.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the conviction and sentence for theft on count 2 were proper and in accordance with justice. However, the conviction and sentence for contravention of section 82 of Act 129 of 1993 were a glaring and unexplained error, as the accused had already been discharged on that count under section 174 of the Criminal Procedure Act. The court set aside the conviction and sentence for contravention of section 82, confirming only the conviction and sentence for theft.
Obiter and limits
- The procedural error in convicting the accused on a count after discharge under section 174 is serious and must be corrected to maintain the integrity of the criminal justice process.
Court disposition
Conviction and sentence for theft on count 2 confirmed; conviction and sentence for contravention of section 82 of Act 129 of 1993 set aside.
- The conviction and sentence in respect of count 2 as charged are confirmed.
- The conviction and sentence in respect of the contravention of section 82 of Act 129 of 1993 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.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No.: 133/2011
In the review between:
THE STATE
and
BENJAMIN MONGEZI
NGALO
_____________
CORAM: VAN DER MERWE, J et C J MUSI, J
JUDGMENT: VAN DER MERWE, J
DELIVERED ON: 21 APRIL 2011
[1] This is a special review with a request by the trial magistrate that a conviction and sentence be set aside.
[2] The accused was charged with three counts. In terms of count one the accused was charged with a contravention of section 82 of the Third General Law Amendment Act 129 of 1993, in that on or about 7 January 2009 and at or near Bloemfontein the accused was in the possession of Allen keys. In count 2 it was alleged that on or about 27 March 2009 and at St Andrew Street, Bloemfontein the accused broke open a motor vehicle and stole a briefcase. Count 3 alleged a contravention of section 36 of the General Law Amendment Act, no 62 of 1955 committed on or about
5 October 2007 at or near Hanger Street, Bloemfontein in respect of possession of a tyre.
[3] After the State’s case was closed, the accused was discharged in terms of section 174 of the Criminal Procedure Act on both counts 1 and 3. This took place on 30 November 2010. The accused then testified in his own defence in respect of count 2 only.
[4] Despite this, on 3 December 2010, the magistrate convicted the accused of theft as charged on count 2, as well as of contravention of section 82 of Act no 129 of 1993 in respect of possession of an Allen key in relation to the breaking open of the motor vehicle referred to in count 2. The accused was then also separately sentenced in respect of both the theft and the contravention of section 82 of Act no 129 of 1993.
[5] The conviction of theft on count 2 as charged and the sentence imposed in respect thereof is in accordance with justice. The conviction of contravention of section 82 of Act no 129 of 1993 is a glaring and unexplained error that must be corrected by setting aside the conviction and the sentence imposed in respect thereof.
[6] The conviction and sentence in respect of count 2 as charged, are confirmed but the conviction and sentence in respect of the contravention of section 82 of Act no 129 of 1993 are set aside.
_____
C. H. G. VAN DER MERWE, J
I concur.
___
C. J. MUSI, J
/eb
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