CRIMINAL LAW – REVIEW OF CONVICTION ON COMPETENT VERDICT

CRIMINAL LAW – REVIEW OF CONVICTION ON COMPETENT VERDICT

This was a review in terms of section 304 (4) of the Criminal Procedure Act, 51 of 1977 (the CPA). The accused was charged in the Magistrate’s Court in the district of Gobabis, with the offence of theft of a motor vehicle read with the provisions of sections 2, 3, 4, 13(1), 13(2), 14, 15, 20(1), 20(2), 21, 22 and 23 of the Motor Vehicle Theft Act 12 of 1999, as amended (the Act)  in that upon or about the 10^th day of October 2020 and at or near Tswana Block Epako in the district of Gobabis, the accused did wrongfully, unlawfully and intentionally steal a motor vehicle, the property of or in lawful possession and control of another person.

After evidence was heard the court convicted the accused on the competent verdict of the unlawful use of property in contravention of s 8(1) of the General Law Amendment Ordinance 12 of 1956 and sentenced him to pay a fine of N$15 000 or 3 years’ imprisonment. The review court queried the presiding magistrate about the propriety of finalising the matter in the district court. In his reply the magistrate conceded that he had no jurisdiction to do so. He reminded the review court that the accused was not convicted as charged, but on a competent verdict. He requested this court to endorse the conviction and sentence if it is in order, alternatively to set it aside and for the matter to commence de novo.

CLAASEN J (LIEBENBERG J concurring) considered whether the conviction was in accordance with justice and found that the court a quo misdirected itself when convicting on a competent verdict. In addition the court found that the evidence was sufficient to convict the accused as charged, i.e. theft of a motor vehicle read with the provisions of the Motor Vehicle Theft Act 12 of 1999, as amended. As regards an appropriate sentence, the court found it appropriate to remit the matter for submissions or evidence on sentencing afresh, as the accused was now convicted of a more serious offence.

In the result,  the court set aside the conviction and sentence of the magistrates court and substituted the conviction with one of theft of a motor vehicle read with the provisions of the Act and remitted the matter back to the trial court for it to invoke section 116 of the CPA and commit the accused for sentencing by a regional court having jurisdiction.

S v Gebhard NAHCMD 1 September 2022