S v Mbeta and Another

• Jurisdiction: South Africa
• Judge: Pickard ACJand Rees AJ
• Judgment Date: 08 March 1984
• Hearing Date: 08 March 1984
• Court: Ciskei Supreme Court

Pickard ACJ:

This matter came before me on review at the request of the presiding magistrate who directed a letter to the Registrar of this Court which is best quoted verbatim. It reads as follows:

"Kindly lay the following request before the honourable reviewing Judge for favour of his decisions:

The abovenamed accused are facing charges of dealing in dagga in terms of s 2 (a) of Act 41 of 1971.

C Their case is still pending.

On 21 November 1983 an application for the release of the vehicle which was used in connection with the conveyance of the said dagga was made.

The court erroneously granted such application although the case has not yet been disposed of.

It is my humble request that the honourable Judge should set D aside that order pending finalisation of the case.

I have directed the police to obtain such vehicle and keep it in their custody pending the confirmation hereof and disposal of the case.

As I do not wish to overburden the honourable judge in reading the record I am only attaching copies of the charge sheet and its annexure for his information, please."

In response to my subsequent request to the magistrate to E furnish me with the record of the proceedings to date together with the reasons for his making of the relevant order, he replied per letter as follows:

"Mr Quinn for defence applied for the release of the vehicle to the owner and there was no objection by the prosecutor.

Without applying my mind, being clouded by the fact that the prosecutor did not object, I granted the application.

F Thereafter, on perusing the Act (Act 41 of 1971), it dawned that the release of any receptacle or vehicle which was used in any act in connection with the conveyance of dagga can be made after the disposal of the case and that, if any third party has a claim to the said vehicle, he may do so after the disposal of the case.

This will be the case where there will be no prejudice if the vehicle is kept in custody of the police pending the disposal of the case.

G In fact, in terms of the Act, it must be declared forfeit to the State. The record of the proceedings is forwarded herewith as instructed."

It is not necessary to refer in any greater detail to the record of the proceedings in this judgment as the facts appear clearly from the magistrate's letters save to state that it H appears from the record that the vehicle was at all relevant times owned by one Mr Mamana who is not an accused in this matter.

I have also referred the matter to the Attorney-General for his comments and he has very kindly given me his views which have been extremely helpful.

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