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South Africa Judgment

Free State High Court, Bloemfontein

S v Ngalo (133/2011) [2011] ZAFSHC 96 (21 April 2011)

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Source document

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

Applicant

BENJAMIN MONGEZI NGALO

Respondent

03

Procedural history

  1. Posture

    Criminal Review / Special Review After Conviction and Sentence

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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 text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2011] ZAFSHC 96

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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Authorities

Authorities used by the court

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

Criminal Procedure Act, section 174

Legislation

Legislation referenced in the available case record.

General Law Amendment Act 129 of 1993

Legislation

Legislation referenced in the available case record.

General Law Amendment Act 62 of 1955

Legislation

Legislation referenced in the available case record.

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