S v Ntshonyane and Another

• Jurisdiction: South Africa
• Court: Free State Division, Bloemfontein
• Judge: Daffue J and Murray AJ
• Judgment Date: 21 August 2014
• Citation: 2015 (2) SACR 70 (FB)
• Hearing Date: 21 August 2014
• Docket Number: 99/2014
• Counsel: Information not supplied

Murray AJ (Daffue J concurring): A

[1] This is a special review pursuant to the conviction and sentence of the two accused in terms of the Aliens Control Act 96 of 1991, which Act was repealed as a whole by the Immigration Act 13 of 2002.

[2] The additional magistrate, Welkom, requested this court to set aside B the said conviction and sentence since it was imposed in terms of a repealed Act.

[3] The first judge tasked with the review addressed two questions to the court a quo, namely:

'1.

Is this not a case where on review the conviction under the C repealed statute can be replaced by a conviction under the new statute because there is no prejudice to the accused?

[See S v Busuku 2006 (1) SACR 96 (E).]

2.

Under which section of the Immigration Act 13 of 2002 should the accused have been charged?'

D [4] The relevant magistrate replied that the accused in casu should have been charged under s 49(1)(a) of the Immigration Act 13 of 2002, and answered the other question as follows:

'Ad paragraph 1:

The difference that I found between this case and S v Busuku is that the E conviction was based on the contravention of a law that exists, which is contravention of s 51(1) of Act 51 of 1977, the only thing that did not exist was the penalty clause, as penalty was in terms of a repealed law, which is s 48 of Act 8 of 1959, which was replaced by s 117(a) of Act 111 of 1998. It is clear that the conviction was sustained, because all the elements of the offence were met, the offence being contravention of F s 51(1) of Act 51 of 1977. The problem was with the sentence.'

[5] The J4 indicates that both accused in casu upon being convicted were on 13 May 2014 sentenced to payment of R1500 or three months' imprisonment. The magistrate, in her first covering letter of 20 May 2014, reported that the accused elected not to pay the alternative fine and were G both serving their terms of imprisonment.

[6] The charge, as set out in the charge-sheet, was contravention of the provisions of s 23(a) of the Aliens Control Act in that:

'On or about 9 May 2014 at or near Welkom the accused unlawfully and intentionally entered or were found within the borders of the H Republic of South Africa without being in possession of an immigration permit issued in terms of Act 96 of 1991.'

[7] Both accused in court indicated that they understood the charge against them and that they pleaded guilty to the said charge. The court explained to both that they had the right to legal representation, the right to apply for access to witness statements and the right I to apply for bail. It informed them, furthermore, of their right to remain silent and of the consequences of electing not to do so.

[8] In view of the nature of the sentence, namely a fine of R1500 or alternatively three months' imprisonment, there was no need for a J s 112(1)(b) enquiry in terms of the Criminal Procedure Act 51 of

Murray AJ (Daffue J concurring)

1977 (the CPA). The court allowed both accused to lead evidence in A mitigation regarding their sentences. No previous convictions were proved and the said sentence was imposed.

[9] In the case to which the additional magistrate was referred, S v Busuku, [1] the conviction of an accused for contravention of s 51(1) of B the CPA was set aside on review by virtue of the provisions of s 270 of the CPA, and altered to a conviction in contravention of s 117(a) of the Correctional Services Act 111 of 1998.

[10] In the said case the court held that s 270 provided for the alteration of an accused's conviction under an incorrect Act to a conviction under C a correct Act if the essential elements of the alleged competent verdict were included in the original charge. The prerequisites for such alteration are that the competent verdict be proved and that the accused suffer no prejudice from the alteration of his conviction to the contravention of another Act. [2]

[11] Regarding a court's powers to convict an accused of having D committed an offence other than the offence alleged in the indictment, s 270 specifically provides that:

'If the evidence on a charge for any offence not referred to in the preceding sections of this Chapter does not prove the commission of the offence so charged but proves the commission of an offence which E by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.'

[12] Evidently s 270 can only be invoked in respect of an offence not mentioned in ch 26 of the Act. [3] It has been held — F

'that the enquiry, when determining whether to invoke the provisions of s 270 of the Act, is whether the essential elements of the alleged competent verdict were included in the original charge'. [4]

[13] From the case law it is clear that the essential elements of the competent verdict need only correspond with the essential elements of G the charge as set out in the charge-sheet, [5] not with all the allegations in the charge. That was confirmed in S v Mbatha [6] where the court pointed out that the —

'criterion under [s 270] . . . is to be found exclusively in the essential elements of the offence charged, irrespective of any additional allegations which may have been embodied in the charge'. H

Murray AJ (Daffue J concurring)

A [14] It has also been made clear that the requirement is that of correspondence with the essential elements of the charge, not with the legal definition of the offence. This was the approach in S v Nkosi [7] and in S v Mei [8] in which it was stated that:

'There is much to be said for the view that the wording of s 270 . . . B bears the meaning that, as long as the essential elements of the lesser offence are included in the offence so charged, ie in the charge-sheet, not the legal definition of the crime, a finding of guilt on the lesser crime is competent.'

[15] In S v Mavundla, [9] for instance, the conviction was confirmed on C appeal on the basis that the charge as framed against the accused indeed included all the essential elements of the competent verdict. The court stated:

'Met eerbied doen ek aan die hand dat die vraag eenvoudig is of die D bewese misdryf...