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South Africa Judgment

North Gauteng High Court, Pretoria

S v Sebone (A627/2012) [2012] ZAGPPHC 216 (4 September 2012)

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Source document

01

Holding and result

The accused was charged and convicted under section 38(1)(b) of the Limpopo Environmental Management Act, which requires the use of a device in hunting. However, the accused admitted to knocking down a protected species using a tractor, which falls under section 31(1)(a) of the Act and does not require the use of a device. The conviction was therefore based on an incorrect section of the Act. The court found that the conviction should be set aside as the admitted conduct did not constitute an offence under the section charged.

Court disposition

Conviction set aside.

Orders

  • The conviction of the accused on 19 January 2012 is hereby set aside.

02

Material facts

Parties

The State

Applicant

Isaac Sebone

Respondent

03

Procedural history

  1. Posture

    Review Application / Review Judgment Following Conviction in Magistrates Court

04

Questions and positions

Legal issues

Party arguments

Applicant
The State prosecuted the accused for contravening section 38(1)(b) of the Limpopo Environmental Management Act, alleging the use of a device in hunting a protected species. The accused pleaded guilty and admitted to knocking down a protected species using a tractor.
Respondent
The accused admitted to the conduct but the statement in terms of section 112(2) of the Criminal Procedure Act indicated that the offence fell under section 31(1)(a) of the Act, which does not require the use of a device. The respondent did not contest the review.

05

Court’s reasoning

  1. 01

    Criminal Procedure Act 51 of 1977

    A conviction must be based on the correct statutory provision that matches the admitted conduct.

  2. 02

    Limpopo Environmental Management Act 7 of 2003

    Section 31(1)(a) of the Limpopo Environmental Management Act prohibits hunting specially protected wild animals without a permit, regardless of the device used.

06

Ratio, limits and disposition

Ratio decidendi

The accused was charged and convicted under section 38(1)(b) of the Limpopo Environmental Management Act, which requires the use of a device in hunting. However, the accused admitted to knocking down a protected species using a tractor, which falls under section 31(1)(a) of the Act and does not require the use of a device. The conviction was therefore based on an incorrect section of the Act. The court found that the conviction should be set aside as the admitted conduct did not constitute an offence under the section charged.

Obiter and limits

  • It is essential for the prosecution to ensure that the charge matches the conduct admitted by the accused.
  • Convictions based on incorrect statutory provisions undermine the administration of justice.

Court disposition

Conviction set aside.

  • The conviction of the accused on 19 January 2012 is hereby set aside.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2012] ZAGPPHC 216

NOT

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT,PRETORIA)

Date:04/09/2012

Date:A627/2012

Date: 15 August 2012

Supreme Court Ref: 474

Magistrate's Serial No: 05/2012

Review Case No: 05/2012

In the matter between:

THE

STATE

ISAAC

SEBONE ….....................................................Respondent

REVIEW

JUDGMENT

MNGQIBISA-THUSI J:.

[1] The accused was charged and pleaded guilty to contravention of section 38(1 )(b) read with section 38(2) of the Limpopo Environmental Management Act 7 of 2003 ("the Act"), in the Mokopane (Potgietersrus) Magistrates Court.

[2] On 19 January 2012 he was convicted on the basis of his plea. However, before the proceedings on sentence could start, the presiding officer, acting senior Magistrate, Mr A P Van Der Kooi, realised that in his statement in terms of section 112(2) of the

Criminal procedure Act 51 of 1977, the accused had admitted to knocking down a protected species using tractor, such offence is not covered by section 38(1 )(b) on which he was charged and convicted, but falls squarely within the provisions of section 31 (1 )(a) of the Act, which does not require the use of any device in the hunting. Section 38(1)(a) reads as follows:

"31. Hunting of wild and alien animals.-(1) No person may without a permit hunt-fa) Specially protected wild animals."

[3] Having read the record and having considered the matter, I am satisfied that the accused was charged and convicted on an incorrect

section of the Act and that his conviction on the basis of 38(1)(b) should be set aside.

[4] Accordingly I would recommend that the following order be made:

"The conviction of the accused on 19 January 2012 is hereby set-aside."

N.P MNGQIBISA-THUSI

Judge of the High Court North Gauteng High Court

I agree and it is so ordered

_______

N

MAVUNDLA

Judge of the High Court

North Gauteng High Court

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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.

Limpopo Environmental Management Act 7 of 2003

Legislation

Legislation referenced in the available case record.

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