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South Africa Judgment

Free State High Court, Bloemfontein

S v Ralepanyana (R193-2019) [2019] ZAFSHC 221 (28 November 2019)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The conviction of the accused for receiving stolen property under section 37 of the General Law Amendment Act was irregular because stock or produce as defined in the Stock Theft Act is explicitly excluded from the ambit of section 37. The accused admitted to receiving sheep, which are stock, and therefore the conviction was not competent. The proper charge, based on the plea explanation, should have been under the Stock Theft Act, specifically section 11(1)(b), as the accused knew the sheep were stolen. The irregularity in the conviction and sentence necessitates that both be set aside and the matter be remitted to the regional court for a fresh hearing.

Court disposition

Conviction and sentence set aside; matter remitted to regional court for de novo hearing.

Orders

  • The conviction and sentence are set aside.
  • The matter is remitted to the regional court to be dealt with de novo.

02

Material facts

Parties

The State

Applicant

Moeketsi Petrus Ralepanyane

Respondent

03

Procedural history

  1. Posture

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

04

Questions and positions

Legal issues

Party arguments

Applicant
The prosecution accepted the accused's plea of guilty to receiving stolen property under section 37 of the General Law Amendment Act, based on his admission to receiving 11 sheep, despite the charge originally being stock theft. The plea explanation was submitted and accepted.
Respondent
The acting regional court magistrate submitting the matter for review argued that the conviction was irregular because section 37 explicitly excludes stock or produce as defined in the Stock Theft Act. It was suggested that the charge should have been under section 2 of the Stock Theft Act, or alternatively section 11(1)(b) based on the accused's knowledge that the sheep were stolen.

05

Court’s reasoning

  1. 01

    General Law Amendment Act 62 of 1955, section 37

    A conviction for receiving stolen property under section 37 of the General Law Amendment Act is not competent where the property is stock or produce as defined in the Stock Theft Act, as such property is explicitly excluded from section 37.

  2. 02

    Stock Theft Act 57 of 1959, section 11(1)(b)

    Where an accused admits knowledge that stock was stolen, the appropriate conviction is under section 11(1)(b) of the Stock Theft Act.

  3. 03

    Criminal Procedure Act 51 of 1977, section 304

    Special review under section 304 of the Criminal Procedure Act allows the High Court to set aside irregular convictions and sentences.

06

Ratio, limits and disposition

Ratio decidendi

The conviction of the accused for receiving stolen property under section 37 of the General Law Amendment Act was irregular because stock or produce as defined in the Stock Theft Act is explicitly excluded from the ambit of section 37. The accused admitted to receiving sheep, which are stock, and therefore the conviction was not competent. The proper charge, based on the plea explanation, should have been under the Stock Theft Act, specifically section 11(1)(b), as the accused knew the sheep were stolen. The irregularity in the conviction and sentence necessitates that both be set aside and the matter be remitted to the regional court for a fresh hearing.

Obiter and limits

  • The learned regional court magistrate correctly identified the statutory exclusion and the appropriate charge under the Stock Theft Act.
  • The acceptance of the plea by the prosecution did not cure the statutory defect in the conviction.

Court disposition

Conviction and sentence set aside; matter remitted to regional court for de novo hearing.

  • The conviction and sentence are set aside.
  • The matter is remitted to the regional court to be dealt with de novo.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment text

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Source document

Free State High Court, Bloemfontein

Judgment

[2019] ZAFSHC 221

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: R193/2019

In the matter between:

THE

STATE

and

MOEKETSI

PETRUS RALEPANYANE

CORAM:

JORDAAN, J et OPPERMAN,

J

JUDGMENT BY: JORDAAN, J

DELIVERED ON: 28 NOVEMBER 2019

REVIEW JUDGMENT

[1] This matter was submitted for special review in terms of section 304 of the Criminal Procedure Act 51 of 1977.

[2] The accused was charged with stock theft in contravention of the

Stock Theft Act 57 of 1959, allegedly having stolen 14 sheep. He was legally represented and pleaded guilty of receiving stolen property in contravention of section 37 of the General Law

Amendment Act 62 of 1955. The plea was accepted by the prosecution on the basis of the plea explanation that was submitted. However, he admitted to receiving only 11 sheep.

[3] The presiding magistrate convicted the accused of contravention

of section 37(2) of the General Law Amendment Act and sentenced him to 6 years imprisonment, wholly suspended for a period of five years.

[4] First of all, a conviction of receiving stolen property contravenes

section 37(1) and not (2). Secondly, stock or produce as defined in the Stock Theft Act is explicitly excluded from the ambit of

section 37. The conviction was therefore irregular as correctly pointed out by the acting regional court magistrate who submitted the matter for special review.

[5] The learned regional court magistrate suggested that the charge should have been contravention of section 2 of the Stock Theft Act. However, on the basis of the plea explanation the accused knew that the sheep were stolen, which would have justified a conviction in terms of section 11(1)(b) of the Stock Theft Act.

[6] As aforesaid, the conviction was not competent and must be set

aside.

[7] In the result the following orders are made:

1. The conviction and sentence are set aside.

2. The matter is remitted to the regional court to be dealt with de novo.

AF JORDAAN, J

I concur

M OPPERMAN, J

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Authorities

Authorities used by the court

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

Criminal Procedure Act 51 of 1977

Legislation

Legislation referenced in the available case record.

General Law Amendment Act 62 of 1955

Legislation

Legislation referenced in the available case record.

Stock Theft Act 57 of 1959

Legislation

Legislation referenced in the available case record.

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