S v Mbayi

• Jurisdiction: South Africa
• Court: Transkei High Court
• Judge: Munnik CJ and Wienand J
• Judgment Date: 23 August 1976
• Citation: 1976 (4) SA 638 (TK)
• Hearing Date: 23 August 1976

Wienand, J.:

The accused, Fanavele Mbayi, together with two other persons, were charged with the offence of contravening the provisions of the Stock Theft Act, 57 of 1959. The magistrate in due course convicted the accused of contravening F the provisions of sec. 2 of the Act and sentenced him to undergo 12 months' imprisonment of which six months were suspended subject to certain appropriate conditions. The other two accused were correctly found not guilty and discharged.

When submitting this matter for review the magistrate, in an accompanying letter, stated that he had erred in convicting the G accused of contravening the provisions of sec. 2 of the Act and should have convicted him of stock theft. He now asks this Court to alter the verdict accordingly. On perusal of the record of the proceedings in the court a quo there can be no doubt that the correct verdict should have been one of guilty of stock theft.

The question arises whether this Court has that power.

H In R. v Matsebe, 1949 (4) SA 55 (T), RAMSBOTTOM, J., in dealing with precisely the same situation on review (but under the 'old' Stock Theft Act, 26 of 1923) held that it had such power (see also the judgment in R. v Simanga and Others, 1950 (3) SA 284 (T), by the same learned Judge). In Matsebe's case, supra, the learned Judge on p. 56 said:

'The Court on review does not increase a sentence...