S v Sithole and Others (R33/2018) [2018] ZAFSHC 38 (15 March 2018)

S v Sithole and Others (R33/2018) [2018] ZAFSHC 38 (15 March 2018)

The accused were convicted under Section 143(3) of the Mining Rights Act 20 of 1967, which had been repealed by Section 24(1) of the Precious Metals Act 37 of 2005. The applicable legislation for the offence is now the Precious Metals Act, specifically Section 4. Since the convictions were entered under a statute no longer in force, they are invalid and must be set aside. Furthermore, because the accused pleaded guilty under the repealed legislation, the convictions cannot simply be substituted under the new Act. The proper procedure is to remit the matter to the Magistrate's Court for the accused to plead afresh before a different magistrate on charges under the current legislation.

Citation
[2018] ZAFSHC 38
Parties
Applicant: The State; Respondent: John Sithole; Respondent: Shiviko Johannes Makhubela; Respondent: Justice Bendani
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 March 2018
Case Number
R33/2018
Procedural Posture
Special Review / Post Conviction, Pre Sentencing
Outcome
Convictions set aside; matter remitted for fresh pleas under the correct legislation.
Judges
P. J. Loubser, C. Reinders
Legal Topics
Unlawful Possession of Precious Metals, Repeal of Statute, Special Review Procedure, Conviction Under Wrong Legislation
Criminal Law Unlawful Possession of Precious Metals Repeal of Statute Special Review Procedure Conviction Under Wrong Legislation

Case Brief

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Parties

The State

Applicant

John Sithole

Respondent

Shiviko Johannes Makhubela

Respondent

Justice Bendani

Respondent

Procedural Posture

Special Review / Post Conviction, Pre Sentencing

Legal Issues

  1. 1 Was the conviction of the accused under the correct legislation?
  2. 2 Can the convictions be substituted under the new applicable legislation after guilty pleas under the repealed statute?
  3. 3 What is the appropriate remedy when a conviction is entered under repealed legislation?

Ratio Decidendi

The accused were convicted under Section 143(3) of the Mining Rights Act 20 of 1967, which had been repealed by Section 24(1) of the Precious Metals Act 37 of 2005. The applicable legislation for the offence is now the Precious Metals Act, specifically Section 4. Since the convictions were entered under a statute no longer in force, they are invalid and must be set aside. Furthermore, because the accused pleaded guilty under the repealed legislation, the convictions cannot simply be substituted under the new Act. The proper procedure is to remit the matter to the Magistrate's Court for the accused to plead afresh before a different magistrate on charges under the current legislation.

Court Disposition

Convictions set aside; matter remitted for fresh pleas under the correct legislation.

Orders

  • The convictions of all three accused in terms of Section 143(3) of Act 20 of 1967 are set aside.
  • The matter is remitted to the Magistrate Court, Phuthaditjhaba, for the accused to plead de novo before a different magistrate to charges of contravening Section 4 of Act 37 of 2005.