Category Archives: Court

National Prosecuting Authority welcomes sentencing of law breaker

The North Gauteng High Court sentenced Ben Masilo Maselane from Soshanguve to two life sentences in respect of one count of rape and murder. He was further sentenced to six years imprisonment for housebreaking with intent to kidnap and six years imprisonment for kidnapping.

During the night of 10 February 2007, the accused came to the deceased home looking for her father and he was told that their parents were not home. The deceased (a seven year old girl) had been sleeping in the house with her brother at the time.

The accused came back during the course of the night and he dug a hole underneath the shack to gain entry into the shack. He removed the deceased from the shack and took her to a nearby veld where he raped and strangled her. He thereafter set her body alight using a tyre.

The accused was arrested in November 2013.

Advocate Juliet Makgwatha argued that the offence was committed in the most horrendous manner and there are no substantial and compelling circumstances to deviate from the prescribed minimum sentence. The court agreed with state and imposed the prescribed minimum sentence.

The NPA welcomes the sentence.

SOURCE: SOUTH AFRICAN OFFICIAL NEWS

Labour on contravention of labour law

The Department of Labour continues to leave no stone unturned in ensuring that the rights of employees in the workplace are not trampled upon by their employers. To give further expression to this hard stance taken by the Department, a variety of employers who continue to subvert labour laws are taken to task and many of them, are convicted and harshly punished by the courts.

Mr Thapelo Daniel Scheepers, the owner of the construction company called Pulamadiboho Construction is one such employer who failed to adhere to labour laws. He is doing construction work on the R57 road between Reitz and Warden in the magisterial district of Reitz and has 70 employees. The charges brought against Mr Scheepers were as follows;

Failure to appear before the labour inspector

Failure to produce required document to the labour inspector, and

Failure to comply with lawful order or request by the labour inspector

Each charge contained a sentence of a fine or imprisonment not longer than a year. The trial started on 21 October 2015 and judgment was reserved for the 18th November 2015. On the latter date the employer was found guilty as charged and was sentenced to a fine of R40 000, of which R20 000 of that was suspended, or 100 days imprisonment. He was further sentenced to 3 years imprisonment, which was also suspended.

In response to the court verdict Ms Bronkhorst – Chief Director: Provincial Operations for Free State said: “We hope this court judgement will serve as a deterrent to other employers who continue or contemplate disobeying and disregarding labour laws. It is incumbent on all of us to build a workplace conducive for high levels of productivity whilst ensuring that employees are also cared for. We are therefore thankful to our labour inspectors, the Bethlehem Labour Centre inspectors in particular, who committed to ensuring that employees are protected at all times.”

Enquiries: Josial Ramokoena

Provincial Spokesperson: Free State

Tel: 051 505 6284

Cell: 083 292 4018

E-mail: josial.ramokoena@labour.gov.za

SOURCE: SOUTH AFRICAN OFFICIAL NEWS

SA calls on ICC to go back to basics

Pretoria: South Africa has called on the International Criminal Court (ICC) member states to interrogate whether it is still reflective of the principles and values which guided its creation.

“Has this court become the universally accepted institution for justice as initially hoped for when we established it? Or has the fact that some permanent members of the Security Council remain outside the court with the ability to protect themselves and their allies from the reach of the court endangered the ideal of universality and equality before the law?” said International Relations and Cooperation Minister Maite Nkoana-Mashabane on Wednesday.

She was speaking as debates among members of the ICC get underway in the Netherlands.

Minister Nkoana-Mashabane’s questions come as tensions grow over the court’s relationship with Africa, especially with the recent row over Sudanese President Omar Al Bashir.

The Minister said perceptions of inequality and unfairness in the practice of the ICC do not only emanate from the court’s relationship with the Security Council.

“We ask ourselves, as have many, why no investigations have been opened in Afghanistan, Iraq and Palestine after long periods of preliminary analysis, notwithstanding clear evidence of violations.

“Is it because those investigations have the potential to implicate the ‘great powers’?”

Minister Nkoana-Mashabane said South Africa was only raising these issues because of the events of June this year.

“During the 67th session of the United Nations General Assembly, for example, we questioned the decision of the former prosecutor regarding Palestine.

“In the 65th session of the General Assembly, we observed that the one-sided justice being dispensed by the ICC ‘will have a negative impact on the image, credibility and integrity of the Court’. So these are issues we have been raising for some time, and it is time that the ASP [Assembly of States Parties] seriously consider them.”

Despite the criticism, Minister Nkoana-Mashabane said South Africa remains committed to human rights and the fight against impunity beyond question.

The Minister said Pretoria condemns in the strongest terms human rights violations and international crimes wherever they may occur.

“However, South Africa cannot and will not be silent in the face of serious flaws in some of the practices of the court in the interpretation of the statute. We will not join in the dangerous chorus of uncritical loyalty.”

Court sets convicted prisoner free

The High Court in Banjul, presided over by Justice Simeon Ateh Abi recently quashed the conviction and sentence imposed on one Sankung Jobarteh by the Banjul Magistrates’ Court.

Delivering judgment, Presiding judge Simeon Ateh Abi said the appellant was arraigned on one count of possession of prohibited drugs for the purpose of drug trafficking contrary to section 43(4) (e) of the Drug Control Act 2003.

He said the particulars of the offence alleged that the appellant on or about the 6th day of January 2013 at Sibanor in the West Coast Region had in his possession 3kg 640g of Cannabis sativa; the appellant pleaded not guilty to the charge.

Justice Abi asserted that the prosecution laid out their case by calling 4 witnesses and tendering several exhibits, while the appellant testified on his own behalf in defence.

In a judgment delivered on the 21st of January 2014, the trial 1magistrate convicted the appellant as charged and sentenced him to a fine of D1 million and an additional 10 years imprisonment. In default of the fine, the appellant would serve another two years imprisonment which is to run concurrently, with all the sentences beginning from the time the appellant was first arrested.

Justice S.A. Abi revealed that against the said judgment, the appellant filed a notice of appeal from prison on the 28th day of January 2014 raising two grounds.

He said in law, only material contradictions that go to the substance of the case can be resolved in favour of the accused, adding that cosmetic or assumed contradictions which do not occasion a miscarriage of justice cannot affect the guilt of the accused, citing the case of Isibor v state (2005) 1 NCC 221 @ 223-224 HELD 5.

From the record, he intimated, the appellant raised three issues about the statements. Firstly was the issue that the words are not his own; secondly that he was forced to thumbprint and thirdly that there was no independent witness.

He explained that if the trial magistrate could overrule the objection on the first ground, she ought to have ordered a trial within trial on the basis of the second and third legs of the objection raised by the appellant.

He indicated that the trial magistrate in her view erred in law when she admitted the statements without conducting a voir dire to determine the voluntariness of the statements admitted.

Justice Abi added that the trial magistrate effectively disregarded the entire evidence led by the appellant, noting that this was an improper evaluation of the evidence and thus occasioned a miscarriage of justice.

He said that in the instant case, the wrongful admission and reliance on exhibits A and A1 occasioned a miscarriage of justice entitling him to set aside the conviction and sentence passed on the appellant.

The appellate judge disclosed that the ownership of the bicycle, exhibit D, cannot be so difficult to prove. He explained that if the accused objected that he was not arrested with a bicycle and knew nothing about the bicycle which he was seeing for the first time when it was tendered, the prosecution ought to have called evidence as to the ownership of the bicycle.

Justice Abi revealed that the unresolved issues of the voluntariness of the statements of the appellant and the ownership of the bicycle which was allegedly used in carrying the drugs have left gaps in the prosecution’s case.

He further intimated that the law is clear that such doubts in the case of the prosecution ought to be resolved in favour of the accused and he so resolved the doubts in favour of the appellant.

Justice Simeon Ateh Abi declared that he found merit in the appeal and thereby set aside the conviction and sentence passed on the appellant by the trial magistrate Jackline Nixon Hakim.

The appellant, Sankung Jobarteh, was therefore acquitted and discharged.

Drug convict sentenced to pay D150, 000

Presiding Magistrate Abdoulie Fatty of the Banjul Magistrates’ Court recently convicted and sentenced one Kawsu Ceesay to pay the sum of D150,000 in default to serve 3 years imprisonment after he was found guilty of possession of prohibited drugs for the purpose of drug trafficking contrary to section 43(4)(e) of the Drug Control Act 2003.

Delivering judgment, Magistrate Fatty disclosed that the prosecution had indicated that the convict, Kawsu Ceesay, on or about the 5th day of February 2014 at Sukuta in the West Coast Region of the Republic of The Gambia, had in his possession 4kg 520g of Cannabis sativa, a prohibited drug and thereby committed an offence.

He said at arraignment, the charge was read and translated to him in Mandinka language and pleaded not guilty to the charge.

Magistrate Fatty asserted that as in all criminal trials, the burden of proving the guilt of every accused person beyond reasonable doubt rests on the prosecution except where it is provided by statute.

He pointed out that in order to discharge that burden, the prosecution called five witnesses and tendered the following exhibits: Exhibit A – Weightment Certificate; Exhibit B – a black handbag containing a bundle of suspected cannabis and a blue nylon bag containing two bundles of suspected cannabis; Exhibit C – Analytical Report and Exhibits D and D1– Cautionary and voluntary statements respectively of the accused/convict.

Magistrate Fatty further pointed out that the accused/convict testified as DW1, the sole witness in his defence and tendered the following exhibits: Defence Exhibits A, B and C – statements of PW2, PW1 and PW4 respectively.

He said in determining the case certain issues arose for determination and they were:

(i) Whether the suspected cannabis was Cannabis sativa, a prohibited drug?

(ii) Whether the prohibited drug was found in the possession of the accused?

(iii) Whether the accused was in possession of the prohibited drug for the purpose of drug trafficking?

Magistrate Fatty stated that trafficking is an aggravated form of possession, adding that in this matter it was not in dispute that some 4kg 520g of Cannabis sativa was seized. The issue here now is – whether or not prosecution has proved beyond reasonable doubt that the accused/convict was found in possession of the said cannabis?

He revealed that the testimonies of the 1st, 2nd and 4th prosecution witnesses were very material to the case because they were present on the ground when the convict was arrested and therefore found their evidence against the convict direct, strong and mutually corroborative.

He remarked that it is well established that where evidence remains unchallenged and uncontroverted, the court has no choice than to regard it as establishing the facts alleged therein, citing the Antoine Banna versus Ocean View Resort Limited and ors (2008) 1 GLR, and also Jayesena versus the Queen [ 1970] AC 618 at p.624.

Magistrate Fatty said the convict did not offer any strong and credible evidence to lend probative value to his evidence as a result he found the entire evidence rather implausible, simplistic and incredible.

He asserted that the fact that the cannabis in the instant case weighed more than 2kg, does not automatically prove the ingredient of trafficking, stating that weight is just one of many factors to be considered.

Magistrate Fatty disclosed that for trafficking to be made out, there should be an intention on the part of the possessor of the drugs to supply to another or being concerned in supplying the drugs. It follows therefore that there ought to be evidence before this court that the accused/convict was in possession of the Cannabis sativa for the purpose of supplying the said cannabis to another.

“In that regard, no compelling evidence has been adduced by the prosecution to show the court that the accused was in possession for the purpose of trafficking,” he said

He therefore held that the prosecution discharged its legal burden to the required standard pursuant to section 144(1) of the Evidence Act 1994 with regards to possession, and pursuant to section 151 of the Criminal Procedure Code, convicted him for the offence of possession of prohibited drugs without a valid licence contrary to s.35(2)(c) of the Drug Control Act 2003, as amended.

In passing sentence, the trial magistrate said the convict is a first time offender and for that reason the court would temper justice with mercy and therefore sentenced him to pay a fine of D150,000.00 and in default to serve three years imprisonment.

Magistrate Abdoulie Fatty said in pursuant to section 259 of the Criminal Procedure Code, the term of imprisonment is suspended for five months and shall come into force if the convict defaults to pay the fine.

He said the fine may be paid by instalments within the five-month period and he was admitted to bail in respect of the fine on condition that he provides the following:

i. Two Gambian sureties who shall enter into recognizance in the sum of D150,000.00; and

ii. The sureties shall depose to an affidavit of means and also deposit their national ID Cards with the registrar of this court.