S v Sithole and Another (SHO93/2013) [2014] ZAFSHC 18 (27 February 2014)

S v Sithole and Another (SHO93/2013) [2014] ZAFSHC 18 (27 February 2014)

The convictions and sentences on count 1 were set aside because the accused were charged under a statute that had been repealed and thus the offence no longer existed in law. The proceedings were not in accordance with justice, and the High Court exercised its review powers under section 304(4) of the Criminal Procedure Act to set aside the conviction and sentence. The court declined to order prosecution under the correct statute, citing the separation of powers and the role of the prosecution as dominis litis. Section 270 of the Criminal Procedure Act was found not to be applicable to the present situation.

Citation
[2014] ZAFSHC 18
Parties
Applicant: The State; Respondent: Tapiwe Sithole; Respondent: Lovemore Mhlanga Majoni
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 February 2014
Case Number
SHO93/2013
Procedural Posture
Review Application / Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction and sentence on count 1 set aside; no order regarding prosecution under the correct statute.
Judges
K. J. Moloi
Legal Topics
Unlawful Possession of Precious Metals, Illegal Immigration, Repeal of Statute, Review Proceedings
Criminal Law Unlawful Possession of Precious Metals Illegal Immigration Repeal of Statute Review Proceedings

Case Brief

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Parties

The State

Applicant

Tapiwe Sithole

Respondent

Lovemore Mhlanga Majoni

Respondent

Procedural Posture

Review Application / Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the conviction and sentence on count 1 were valid given that the statute under which the accused were charged had been repealed.
  2. 2 Whether the court should set aside the conviction and sentence on count 1 and order prosecution under the correct statute.
  3. 3 Whether section 270 of the Criminal Procedure Act applies to this situation.

Ratio Decidendi

The convictions and sentences on count 1 were set aside because the accused were charged under a statute that had been repealed and thus the offence no longer existed in law. The proceedings were not in accordance with justice, and the High Court exercised its review powers under section 304(4) of the Criminal Procedure Act to set aside the conviction and sentence. The court declined to order prosecution under the correct statute, citing the separation of powers and the role of the prosecution as dominis litis. Section 270 of the Criminal Procedure Act was found not to be applicable to the present situation.

Court Disposition

Conviction and sentence on count 1 set aside; no order regarding prosecution under the correct statute.

Orders

  • The conviction of both accused in count 1, contravention of section 143(3) of Act 20 of 1967, and the sentence of Ten Thousand Rand (R10 000.00) or three years imprisonment plus a further three years imprisonment suspended for five years on condition that the accused are not found guilty of contravention of section...