S v Tshabalala (112/2009) [2009] ZAFSHC 43 (5 March 2009)

S v Tshabalala (112/2009) [2009] ZAFSHC 43 (5 March 2009)

The court held that the accused could not be convicted under section 117(a) of Act 111 of 1998 for count one, as the statute was not in force on the date of the offence. Applying section 270 of the Criminal Procedure Act, the court substituted the conviction with one under section 48(1)(a) of Act 8 of 1959, which was in force at the relevant time. The conviction on count two was confirmed, as the statute was operative at the time of the offence. The matter was remitted to the magistrate's court for sentencing.

Citation
[2009] ZAFSHC 43
Parties
Applicant: The State; Respondent: Oupa Peter Tshabalala
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 March 2009
Case Number
112/2009
Procedural Posture
Review Application / Special Review Under Section 304 a of the Criminal Procedure Act
Outcome
Conviction on count one set aside and replaced with conviction under section 48(1)(a) of Act 8 of 1959; conviction on count two confirmed; matter remitted for sentencing.
Judges
Hancke, R, Van Zyl, R
Legal Topics
Review Proceedings, Incorrect Charge, Retrospective Application of Statute, Escape From Custody
Criminal Law Review Proceedings Incorrect Charge Retrospective Application of Statute Escape From Custody

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Oupa Peter Tshabalala

Respondent

Procedural Posture

Review Application / Special Review Under Section 304 a of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the accused could be convicted under a statute not in force at the time of the alleged offence.
  2. 2 Whether the conviction on count one should be set aside and replaced with a conviction under the applicable statute.
  3. 3 Whether the conviction on count two should be confirmed.

Ratio Decidendi

The court held that the accused could not be convicted under section 117(a) of Act 111 of 1998 for count one, as the statute was not in force on the date of the offence. Applying section 270 of the Criminal Procedure Act, the court substituted the conviction with one under section 48(1)(a) of Act 8 of 1959, which was in force at the relevant time. The conviction on count two was confirmed, as the statute was operative at the time of the offence. The matter was remitted to the magistrate's court for sentencing.

Court Disposition

Conviction on count one set aside and replaced with conviction under section 48(1)(a) of Act 8 of 1959; conviction on count two confirmed; matter remitted for sentencing.

Orders

  • The conviction on count one is set aside and replaced with a conviction under section 48(1)(a) of Act 8 of 1959.
  • The conviction on count two is confirmed.