S v Ramos

• Jurisdiction: South Africa
• Citation: 2005 (2) SACR 459 (C)

S v Ramos
2005 (2) SACR 459 (C)

2005 (2) SACR p459

Citation	2005 (2) SACR 459 (C)
Case No	A83/04
Court	Cape Provincial Division
Judge	Yekiso J and Gess AJ
Heard	January 19, 2005
Judgment	January 19, 2005
Counsel	N Jagga for the appellant.; L Badenhorst for the respondent.

Flynote : Sleutelwoorde B

Search and seizure — Appeal — Against order in terms of s 34 of Criminal Procedure Act 51 of 1977 for disposal of article seized — Court entertaining appeal in exercise of its powers in terms of s 173 of Constitution of Republic of South Africa, 1996, taking into account interests of justice — Semble: In light of provisions of ss 34 and 35(3)(o) of Constitution, High Court expressing C grave doubts that order not appealable.

Search and seizure — Seizure — Disposal of seized article in terms of s 34 of Criminal Procedure Act 51 of 1977 — Proceedings — Provisions of s 34 being peremptory — Magistrate obliged, suo motu, to make order in terms of s 34 at conclusion of trial — Semble: Magistrate's omission to make such order possibly constituting misdirection. D

Search and seizure — Seizure — Disposal of seized article in terms of s 34 of Criminal Procedure Act 51 of 1977 — Proceedings — Evidence contradicting further particulars to charge — State not bound by further particulars to charge in s 34 proceedings — State thus entitled to rely on evidence led at trial which contradicts further particulars. E

Search and seizure — Seizure — Disposal of seized article in terms of s 34 of Criminal Procedure Act 51 of 1977 — Proceedings — Onus — State bearing onus of proving, on balance of probabilities, that person from whom article seized not entitled lawfully to possess such article.

Headnote : Kopnota

The appellant was acquitted in the magistrate's court on a charge of the unlawful possession of gambling devices, in terms of F s 67(1)(c) of the Gambling and Racing Law (Western Cape) 4 of 1996, on the basis that the charge-sheet, as supplemented by further particulars, lacked allegations necessary to sustain the charge. The evidence led at the trial, however, proved that the appellant indeed possessed the gambling machines in contravention of the Gambling Act. G At the conclusion of the trial, the magistrate omitted to make an order in terms of s 34 of the Criminal Procedure Act 51 of 1977 for the disposal of the gambling machines which had been seized from the appellant's possession. The appellant duly launched an application in terms of s 34 of the Criminal Procedure Act for their release. In dismissing the application, the magistrate relied on the evidence led at the trial which proved that the appellant committed the offence H charged. The appellant appealed the dismissal of his application. He contended on appeal that the State and the magistrate had continued to be bound by the State's further particulars in the s 34 proceedings and that the magistrate therefore misdirected himself to the extent that he relied on evidence led at the trial which contradicted the further particulars. The State contended, inter alia, I that the order dismissing the application was reviewable but not appealable.

Held, that the provisions of s 34 of the Criminal Procedure Act were clearly peremptory and the presiding officer was obliged, at the conclusion of the trial, suo motu, to make an order in terms of s 34 for the disposal of the goods. Indeed, to the extent that he omitted to make such an order, he possibly misdirected himself. (Paragraph [23] at 468d - e.) J

2005 (2) SACR p460

Held, further, that the s 34 proceedings were entirely separate from the trial proceedings and the presiding officer in those A proceedings was entitled, inter alia, to take into account evidence tendered at the trial. (Paragraph [27] at 469d.)

Held, further, that there was no authority to the effect that the further particulars to the charge-sheet bound the State for purposes other than the trial itself. (Paragraph [32] at 471h.) B

Held, further, that, in s 34 proceedings, the State bore the onus of proving, on a balance of probabilities, that the person from whom the goods had been seized was not entitled to possess them lawfully. (Paragraph [36] at 473f - g.)

Held, further, that, on the facts, there was no prejudice to the appellant in the s 34 proceedings in the State's relying on the evidence led at the trial, either because he was taken by surprise or because he was denied the opportunity to lead evidence C in rebuttal. (Paragraphs [38] and [39] at 474a - b and 474j.)

Held, further, that, relying on the evidence led at the trial, the State acquitted itself of the onus of proving, on a balance of probabilities, that the appellant was not entitled lawfully to possess the machines and they were therefore correctly forfeited to the State. (Paragraph [42] at 475e.)

Held, further, that, as to the appealability of the magistrate's order, the Court had powers in terms of s 173 of the D Constitution of the Republic of South Africa, 1996 to entertain the appeal and did so in the interests of justice. (Paragraph [43] at 475g - h.)

Held, accordingly, that the appeal was dismissed and the gambling machines seized from the appellant were declared forfeited to the State. (Paragraph [45] at 475j.) E

Semble: In light of the provisions of ss 34 and 35(3)(o) of the Constitution, the Court had grave doubts about the State's contention that the order was not appealable. (Paragraph [43] at 475f - g.)

Annotations:

Cases cited

Reported Cases

AK Entertainment CC v Minister of Justice and Minister of Law and Order and Another 1994 (1) SACR 362 (E): applied F

Dookie v Minister of Law and Order and Others 1991 (2) SACR 153 (D): referred to G

Erasmus en 'n Ander v Minister van Wet en Orde 1991 (1) SA 453 (O): referred to

Fazenda NO v Commissioner of Customs and Excise 1999 (3) SA 452 (T): referred to

Meyers and Another v Triegaardt NO 1948 (4) SA 208 (W): distinguished

Minister van Wet en Orde en 'n Ander v Datnis Motors (Midlands) (Edms) Bpk 1989 (1) SA 926 (A): dictum at 935F - G applied

R v Anthony 1938 TPD 602: referred H to

R v Els 1949 (3) SA 849 (W): referred to

R v Tutu 1943 EDL 49: referred to

R v Van Zyl 1958 (2) SA 190 (O): referred to

R v Verity-Amm 1934 TPD 416: referred to

R v Wilken 1945 EDL 246: referred to

S v Campbell en 'n Ander 1985 (2) SA 612 (SWA): referred to I

S v Cooper and Others 1976 (2) SA 875 (T): referred to

S v Mandela and Another 1974 (4) SA 878 (A): referred to

S v Mbeta and Another 1984 (3) SA 279 (CkA): distinguished

S v Nathaniel and Others 1987 (2) SA 225 (SWA): referred to

S v Ndevu and Others 1991 (1) SACR 416 (E): referred to

S v Ngubenkomo 1968 (2) SA 109 (E): referred to J

2005 (2) SACR p461

S v Rosenthal 1980 (1) SA 65 (A): referred to. A

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, ss 34 and 35(3)(o): see Juta's Statutes of South Africa 2004/5 vol 5 at 1-139 - 1-140

The Criminal Procedure Act 51 of 1977, s 34: see Juta's Statutes of South Africa 2004/5 vol 1 at 1-326 - 1-327 B

The Gambling and Racing Law (Western Cape) 4 of 1996, s 67(1)(c).

Case Information

Appeal against an order in terms of s 34 of the Criminal Procedure Act 51 of 1977 for the disposal of articles seized. The facts appear from the reasons for judgment.

N Jagga for the appellant. C

L Badenhorst for the respondent.

Cur adv vult.

Postea (January 19).

Judgment

Yekiso J et Gess AJ:

[1] The appellant was charged in the magistrate's court, Goodwood, with contravening s 67(1)(c) of the Gambling and E Racing Law (Western Cape) 4 of 1996. We shall, in the course of this judgment, refer to this piece of legislation simply as the Gambling Act.

[2] The allegation by the State, at the time, was that, during the period 1998 up to and including 15 October 1998, and at or near Paradise Entertainment Centre, Voortrekker Road, Goodwood, the appellant wrongfully and intentionally had in his possession 48 gambling devices without the appropriate licence. F

[3] Possession of gambling devices, as defined, without a licence is prohibited in terms of s 67(1)(c) of the Gambling Act unless such possession is for the sole purpose of demonstration, promotion within the industry or for such other purpose as the Gambling Board may authorise from time to time. G

As is the case with any other legislation, the Gambling Act contains a number of definitions. The definitions pertinent to these proceedings are those relating to the terms 'gambling device' and 'slot machine'.

[4] The term 'gambling device' is defined in the Gambling Act as 'any equipment or thing used, or designed to be used, irrespective H of the actual use to which it is put at any time, directly or indirectly, in connection with gambling'.

[5] The term 'slot machine', on the other hand, is also defined in a rather lengthy definition, the material portion thereof being I

'. . . any mechanical, electrical, video, electronic or other device, contrivance or machine used in connection with a gambling game which, upon insertion of money, a token or a similar object therein, or upon payment, whether directly or indirectly, by or on behalf of a player of any consideration whatsoever that is required, is available to be played or operated and the playing or operation of which, whether by reason of the skill of the player or operator or the application J

2005 (2) SACR p462

Yekiso J et Gess AJ

of the element of chance or both, may deliver to the person playing or operating the machine cash, tickets, receipts or tokens to A be exchanged for cash or merchandise or anything of value whatsoever, other than unredeemable free games, or may entitle such person to receive such cash, tokens, merchandise or thing of value, whether the pay-off is made automatically from the...