R v Grobler and Another

• Jurisdiction: South Africa
• Judgment Date: 30 October 1958
• Citation: 1958 (4) SA 764 (E)

R v Grobler and Another
1958 (4) SA 764 (E)

1958 (4) SA p764

Citation	1958 (4) SA 764 (E)
Court	Eastern Cape Division
Judge	Jennett J and Van Der Riet J
Heard	October 27, 1958
Judgment	October 30, 1958

Flynote : Sleutelwoorde E

Criminal procedure — Evidence — Conviction on plea of guilty alone — Factors to which magistrate may have regard in deciding whether or not to apply the proviso to sec. 258 (1) (b) of Act 56 of 1955.

Headnote : Kopnota

The main feature which a magistrate must consider when making up his mind whether or not to apply the proviso to section 258 (1) (b) of Act F 56 of 1955 is the nature of the offence as it is disclosed in the words of the charge. Factors which might properly induce a magistrate, after conviction, to impose a relatively light penalty are not factors to which he should have regard at this stage.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

J. D. Cloete, Q.C., for the appellants referred to: Rex v Vabasa, 1948 (2) SA 451 (E); Rex v Bezuidenhout, 1949 (3) SA 115 (E); Rex v Malgas, 1937 T.P.D. 119; Rex v Langeveld, 1943 CPD 170; R v Van Dyk, 1949 (3) SA 118 (T); R v Fouche, 1953 (3) SA 201 (C); Ex H parte Minister of Justice: In re R v Berger and Another, 1936 AD 334; Sec. 65 (1) (b) of Act 30 of 1928; R v Mpiza, 1954 (3) SA 813; R v Letuli and Another, 1953 (4) SA 241 (T). G

N. J. van der Westhuizen, for the Crown.

Cur adv vult.

Postea (October 30th).

1958 (4) SA p765

Judgment

Jennett, J.:

The two appellants, described as hoteliers, were charged firstly with a contravention of sec. 161 (d) read with secs. 94, 167 (1) (c) and 175 of Act 30 of 1928 in that they sold 2 bottles of brandy to a prohibited person, and secondly with a contravention of sec. 101 (3) read with secs. 175 and 167 (1) (c) of the Act in that when delivering liquor under a letter of exemption they failed to make the necessary A endorsements on such letter.

Before plea the prosecutor withdrew the second charge against the second appellant.

Dealing with the pleas the record has the following entries:

'Acc. No. 1 g. both cts. No. 2 gt. ct. 1. P.P. accepts plea t.n.e. Requests sec. 258 to be applied. Particulars petty and same as case B 1548. Def. n.t.s. but agrees'.

No evidence was led. The appellants were found guilty. On the first count each was sentenced to a fine of £5 (or 1 week imprisonment with compulsory labour) while on the second count first appellant was fined £1 (or 1 week imprisonment with compulsory labour).

C In terms of the notice of appeal it is claimed that the magistrate should not have applied the proviso to sec. 258 (1) (b) of Act 56 of 1955.

In his reasons for judgment the magistrate states that

'the prosecutor submitted that the same two accused had been tried a few minutes before on that same day on an identical issue and in that case the attitude of the Crown was that it was a mere technicality and D omission by the accused as liquor had been sold to a native on a permit under sec. 101 of the Liquor Act and the permit had expired a few days before the sale took place.'

The magistrate then sets out the prosecutor's view of the...