S v Sebone (A627/2012) [2012] ZAGPPHC 216 (4 September 2012)
- Citation
- [2012] ZAGPPHC 216
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- N.P Mngqibisa-Thusi, N Mavundla
- Case number
- A627/2012
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- N.P Mngqibisa-Thusi, N Mavundla
- Case number
- A627/2012
On this page
Professional case brief
Research organized from the available case record
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
ApplicantIsaac Sebone
Respondent03
Procedural history
Posture
Review Application / Review Judgment Following Conviction in Magistrates Court
04
Questions and positions
Legal issues
- 01
Whether the accused was convicted under the correct section of the Limpopo Environmental Management Act.
- 02
Whether the admitted conduct constituted an offence under section 38(1)(b) or section 31(1)(a) of the Act.
- 03
Whether the conviction should be set aside due to the incorrect charge.
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
Legal principles
- 01
Criminal Procedure Act 51 of 1977
A conviction must be based on the correct statutory provision that matches the admitted conduct.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
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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