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South Africa Judgment

Free State High Court, Bloemfontein

S v Tono (R1/2020) [2020] ZAFSHC 13 (29 January 2020)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The conviction was based on the Child Care Act 74 of 1983, which was repealed in its entirety on 1 April 2010 by the Children’s Act 39 of 2005. As a result, the accused could not lawfully be convicted under a non-existent statute. The only remedy is to set aside the conviction and remit the matter for trial de novo under the applicable law.

Court disposition

Conviction set aside and matter remitted for trial de novo.

Orders

  • The conviction is set aside.
  • The matter is remitted for trial de novo.

02

Material facts

Parties

THE STATE

Applicant

MONICA TONO

Respondent

03

Procedural history

  1. Posture

    Special Review / Post Conviction, Pre Sentence

04

Questions and positions

Legal issues

Party arguments

Applicant
The State did not advance arguments as the matter was referred for special review due to a statutory error.
Respondent
The accused pleaded guilty to contravening the Child Care Act 74 of 1983, but the presiding officer realised post-conviction that the Act had been repealed.

05

Court’s reasoning

  1. 01

    Section 313 of the Children’s Act 39 of 2005

    A conviction under a statute that has been repealed is invalid and must be set aside.

  2. 02

    Section 304A of the Criminal Procedure Act 51 of 1977

    Special review is appropriate where a material irregularity or illegality has occurred in the proceedings.

06

Ratio, limits and disposition

Ratio decidendi

The conviction was based on the Child Care Act 74 of 1983, which was repealed in its entirety on 1 April 2010 by the Children’s Act 39 of 2005. As a result, the accused could not lawfully be convicted under a non-existent statute. The only remedy is to set aside the conviction and remit the matter for trial de novo under the applicable law.

Obiter and limits

  • Delays in the referral and review process are unacceptable and must be avoided to ensure expeditious justice.

Court disposition

Conviction set aside and matter remitted for trial de novo.

  • The conviction is set aside.
  • The matter is remitted for trial de novo.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Judgment

[2020] ZAFSHC 13

THE

HIGH COURT OF SOUTH AFRICA

FREE

STATE PROVINCIAL DIVISION

Case No: R1/2020

In the matter between:

THE

STATE

And

MONICA

TONO

Coram: NAIDOO, J et OPPERMAN, J

Delivered: 29 January 2020

Judgment: Opperman, J

JUDGMENT

[1] The matter was submitted to this court in terms section 304A of the Criminal Procedure Act 51 of 1977 for special review. The accused pleaded guilty in terms of section 112(2) of the Criminal Procedure Act 51 of 1977. She was convicted of the contravention of section 50(1) read with sections 1 and 50(3) of the Child Care Act 74 of 1983. The court, after conviction but before sentence, realised that the Child Care Act of 1983 was repealed in terms of section 313 of the Children’s Act 39 of 2005.

[2] The realisation of the presiding officer is indeed correct since the Child Care Act 74 of 1983 was repealed as a whole on 1 April 2010 as per the fourth item in Schedule 4:

“313. Amendment of laws - The laws referred to in the second column of Schedule 4 are hereby amended to the extent indicated in the third column of the Schedule.

(Date of commencement of s. 313: 1 July, 2007. Date of commencement of the laws referred to in the second column of Schedule 4 are as follows: The second, third, fifth, seventh and ninth items: 1 July, 2007 and the first, fourth, sixth and eighth items: 1 April, 2010.)”

[3] Reading of the record convinces that the only remedy for the dilemma is to set the conviction aside and remit the matter for trial de novo.

[4] Peripherally and related to the law that reviews must be dealt with expeditiously, it was noticed that the conviction was on 23 September 2019, the referral letter dated 28 October 2019 and the matter only delivered to the Registrar of the High Court: Free State on 8 January 2020. Meticulous care must be taken to avoid delays of this kind.

[5] Order

The conviction is set aside and the matter is remitted for trial de novo.

______

M OPPERMAN, J

I concur

S NAIDOO, J

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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.

Child Care Act 74 of 1983

Legislation

Legislation referenced in the available case record.

Children’s Act 39 of 2005

Legislation

Legislation referenced in the available case record.

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