FREE STATE HIGH COURT, BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA Review number. : 508/2010 In the review matter between: THE STATE and LEETO MAKEKA CORAM: MUSI, J et MOCUMIE, J JUDGMENT BY: C.J. MUSI, J DELIVERED ON: 03 December 2010 [1] This matter came before me by way of automatic review. The accused was convicted by the magistrate Theunissen on two charges, viz theft of copper cable worth R5168.00 at Beatrix mine and trespassing at the said mine. [2] Both charges were taken together for sentencing and he was sentenced to three (3) years imprisonment. The magistrate also declared a vehicle, saw and bolt cutter forfeited to the State.
2 [3] I sent a query to the magistrate wherein I, amongst others, asked him the following: 3.1 Whether he gave the accused an opportunity to address him before judgment; 3.2 In terms of which section he declared the items forfeited to the State; 3.3 Whether he informed the accused and the prosecutor of his intention to declare the items forfeited to the State and whether he gave them an opportunity to address him on the issue. 3.4 Whether he considered the interest of the accused s mother who was according tot he accused the owner of the vehicle. (This evidence came to light during cross examination of the accused). [4] The magistrate gave a satisfactory explanation as to why the record does not reflect that he gave the accused an opportunity to address him. Like most transcripts that I see these days the transcript of this case is of poor quality. What is disappointing however, is that the magistrate signed the
3 certificate on the J4 without checking whether the record was indeed complete. The certificate on the J4 reads as follows: I certify the annexed record to be the record of the proceeding in the above mentioned case tried before me on the said date. [5] The magistrate wrote a long answer dealing with why he imposed the sentence that he did. I did not query the sentence! The query only related to the order of forfeiture. The closest the magistrate came to answering my query is by stating that he applied section 35(1)(a) of the Criminal Procedure Act, 51 of 1977 (the Act) and that he need not give notice to anyone before making a forfeiture order in terms of section 35(1)(a) of the Act. The answer to my query is replete with grammatical and spelling mistakes. Another indication of the magistrate s approach to his work in this case. [6] The magistrate states that he considered all the prescripts relating to sentencing. He puts it thus: Die hof is oortuig dat die vonnis binne die voorskrifte van die Wet opgelê is en dat alle beginsels en definiesie (sic) ten opsigte van vonnis oplegging nagekom is.
4 Sou daar n artiekel (sic) van n Wet of definiesie(sic) wees wat die hof nie in aanmerking geneem het (sic) wat die hof moes geneem het (sic), sal die hof graag van dit kennis wil neem dat die selfde (sic) fout nie meer intree nie. [7] A perfunctory reading of Kruger s commentary under section 35 in Hiemstra s Criminal Procedure the bible of Criminal Procedure would have assisted the magistrate in answering my query. [8] Section 35 (1) reads as follows: Forfeiture of article to State 35 (1) A court which convicts an accused of any offence may, without notice to any person, declare (a) any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the comission of such offence; or (b) if the conviction is in respect of an offence referred to in Part I of schedule 1, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property,and which was seized under the provisions of this Act, forfeited to the State: Provided
5 that such forfeiture shall not affect any right referred to in subparagraph (i) or (ii) of subsection (4) (a) if it is proved that the person who claims such right did not know that such weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connection with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use and that he may lawfully possess such weapon, instrument, vehicle, container or other article, as the case may be. [9] In S v Hlangothe en n Ander 1979(4) SA 199 (BH) at 202 A D Hiemstra CJ (the original author of the afore-mentioned book on criminal procedure discussed section 35 (1) and said the following: Bowendien het die magistraat nie aan die beskuldigdes n kans gegee om gronde aan te voer waarom daar nie n verbeuring moet wees nie. Die woorde sonder kennisgewing aan enigiemand maak dit skynbaar onnodig om die beskuldigde te waarsku, maar daar is tereg in R v Dedekind 1960 (4) SA 263 (T) en in S v Matsane en Ander 1978 (3) SA 821 (T) te 828B gesê dat die audi alteram partem beginsel nie oor die hoof gesien moet word nie. Met enigiemand word waarskynlik in die
6 eerste plaas derdes bedoel wat n belang by die goed het. Hul regte word ten volle beskerm in ander bepaling van art 35. Vir die toekoms word die volgende as n vaste reël van die praktyk bepaal: 1. Voordat n verbeuring gelas word, moet die beskuldigde eers daaromtrent aangehoor word. 2. Daar moet getuienis oor die waarde wees. 3. Die moontlikheid dat die voorwerp weer by n misdaad gebruik sal word, moet as n faktor by die besluit oorweeg word. 4. Die uitwerking van die verbeuring op die vermoënsposisie van die beskuldigde moet nie buite beskouing bly nie. (My underlining) See also S v Khunong 1989 (2) SA 218 (W) at 222 A F; Kruger; Hiemstra s Criminal Procedure 2 38 (Issue 1). [10] In this matter we do not know what the model or value of the vehicle was. There is no evidence in relation to the value to determine the propotionality of the order in relation to the crime. See S v Ndhlovu 1980 (3) SA 46 (R). Likewise there is no evidence that the vehicle might be used again for criminal purposes. The accused and/ or his mother would
7 have assisted in this regard. A forfeiture order is a drastic step. It is a form of punishment and should be used sparingly. See S v Ntombela 1973 (3) SA 89 (T) at 91 H. [11] It is as clear as a bell that the magistrate had to, at least, hear the accused on the matter. He did not. The forfeiture order can for this reason alone not stand and should be set aside. [12] The vehicle has already been destroyed. The magistrate attached proof to that effect. Section 35(4) is still applicable. [13] I accordingly make the following order: a. The convictions and sentence are confirmed. b. The forfeiture order in respect of the vehicle is set aside and the matter is referred back to the magistrate to deal therewith as set out in this judgment. c. The clerk of the court must deliver a copy of this judgment to the accused.
8 C.J. MUSI, J I concur. B.C. MOCUMIE, J /ar