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South Africa Judgment

North West High Court, Mafikeng

S v Rayi (13/2019) [2020] ZANWHC 14 (2 January 2020)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court held that the accused was convicted and sentenced under the Dangerous Weapons Act 71 of 1968, which had been repealed by Act 15 of 2013 prior to the commission of the alleged offence. The State should have charged the accused under the new Act. Convicting and sentencing a person under a repealed statute constitutes a procedural irregularity and is not in accordance with justice. The accused was prejudiced by not being informed of the correct legal position. Accordingly, the conviction and sentence must be set aside.

Court disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence is set aside.

02

Material facts

Parties

The State

Applicant

Samuel Sele Rayi

Respondent

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The State, through the Magistrate, acknowledges that the accused was convicted and sentenced under the Dangerous Weapons Act 71 of 1968, which had been repealed by Act 15 of 2013. The State requests that the conviction and sentence be set aside, as the correct statute was not invoked.
Respondent
The accused was not appraised of the correct legal position and was convicted under a repealed Act, resulting in prejudice. No formal argument from the accused is recorded, but the review is in his favour.

05

Court’s reasoning

  1. 01

    Dangerous Weapons Act 71 of 1968 (repealed); Act 15 of 2013

    A person cannot be convicted under a statute that has been repealed; proceedings must be conducted under the law in force at the time of the alleged offence.

  2. 02

    General principles of criminal procedure

    Proceedings not in accordance with justice must be set aside to prevent prejudice to the accused.

06

Ratio, limits and disposition

Ratio decidendi

The court held that the accused was convicted and sentenced under the Dangerous Weapons Act 71 of 1968, which had been repealed by Act 15 of 2013 prior to the commission of the alleged offence. The State should have charged the accused under the new Act. Convicting and sentencing a person under a repealed statute constitutes a procedural irregularity and is not in accordance with justice. The accused was prejudiced by not being informed of the correct legal position. Accordingly, the conviction and sentence must be set aside.

Obiter and limits

  • Magistrates must ensure that charges are brought under the correct and current legislation to avoid miscarriages of justice.
  • The repeal of a statute renders any proceedings under it invalid from the date of repeal.

Court disposition

Conviction and sentence set aside.

  • The conviction and sentence is set aside.

Source and reliance status

North West High Court, Mafikeng

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Judgment reading view

Judgment text

The complete available source text.

Source document

North West High Court, Mafikeng

Judgment

[2020] ZANWHC 14

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

HIGH COURT REF NO: 13/2019

DISTRICT: MATLOSANA

MAGISTRATE CASE NO: KLD1771/18

In the matter between:

THE

STATE

And

SAMUEL

SELE RAYI

REVIEW

JUDGMENT

DJAJE J

[1] This matter was sent on special review on 13 December 2019 by the Magistrate of Klerksdorp Court with the following request:

“1. In the abovementioned case, the accused had been convicted in terms of Sec 2(1) read with Sections 1 and 3 of the Dangerous Weapon Act 72 of 1968, and accordingly, sentenced.

2. The above Act had been repealed and the accused should have been convicted (and sentenced) in terms of Act 15 of 2013.

3. In view of the above, I respectfully request the conviction and sentence to be set aside.

4. I await your further instruction(s) herein.”

[2] The issue that arises from the letter by the Magistrate is that the accused was convicted of an offence that no longer exists. In the charge sheet the accused was charged as follows:

“That the accused is guilty of the crime of contravening the provisions of Section 2(1) read with Section 1 and 3 of the Dangerous Weapons Act 71 of 1968- Possession of Dangerous Weapon. In that on or about 19/08/2018 and at or near Jouberton in the District/Regional Division of Matlosana, the accused was/were unlawfully in possession of a dangerous weapon which if used in an assault could inflict serious bodily injury and/or of any object which so resembles a firearm that it was likely to be mistaken for a real firearm, to wit a panga knife.”

[3] The Dangerous Weapon Act 71 of 1968 has been repealed by Act 15 of 2013. The accused should not have been convicted in terms of an Act that has been repealed. The State should have invoked the provisions of section 3(1) of Act 15 of 2013 and not section 2(1) of the repealed Act.

[4] The accused is prejudiced as he was not appraised of the correct legal position and is now convicted of an offence based on a repealed Act. In my view the proceedings were not in accordance with justice and the conviction should be set aside.

Order

[5] Consequently, the following order is made:

1. The conviction and sentence is set aside.

______

J. T. DJAJE

JUDGE OF THE HIGH COURT, NORTH WEST DIVISION

02 JUNUARY 2020

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Authorities

Authorities used by the court

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

Dangerous Weapons Act 71 of 1968

Legislation

Legislation referenced in the available case record.

Dangerous Weapons Act 15 of 2013

Legislation

Legislation referenced in the available case record.

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