in the magistrates court for the regional … · in the magistrates court for the regional division...

RN126/13 -ag 1 ADDRESS

2014-01-30

In the MAGISTRATES COURT for the REGIONAL DIVISION of LIMPOPO

PROVINCE HELD AT LENYENYE

CASE NUMBER : RN126/13

DATE : 2014-01-09

RECORD OF PROCEEDINGS

The STATE versus Blue Platinum Ventures PTY LTD and Matome

Samuel Maponya

10

BEFORE PRESIDING OFFICER : MRS CT HONWANA

FOR THE STATE :

FOR THE DEFENCE: MR. MOTSIRI

INTERPRETER : MR MOCOBE

CHARGE - (SEE CHARGE SHEET) 20

PLEA - (SEE CHARGE SHEET)


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COURT RESUMES ON 30 JANUARY 2014

PROSECUTOR: May i t p lease the court your worsh ip I beg

leave to cal l matter RN126/13 state v B lue P la t inum Ventures

PTY LTD represented by Matome Samuel Maponya.

Appearances today is 30 January 2014 pres id ing of f icer is 10

Mrs Honwana, publ ic prosecutor is , on record

for the f i rst t ime is Advocate Mashimbye f rom the Asses for

Future Unit f rom the Nat ional Prosecut ing Authori ty and the

defence is Advoca te Mots i r i assis ted by Mr Raphir i .

Your W orsh ip matter was ad journed unt i l today for

both the defence and the s ta te to address the court on

sentence and the sentencing by the honourab le cour t . Your

worsh ip the s ta te does not prove any previous convic t ions

against the accused.

COURT: Address on sentence defence? 20

MR MOTSIRI : Your W orship the defence wish to lay the

defence and a plea of non custod ia l ramif icat ion in respect of

the mat ter. The fo l lowing premise must be that the accused

in quest ion had not wasted the courts wi th tendering a plea in

th is regard in which juncture the accused p lea for len iency in

that regard your worsh ip.

Secondly and most important ly your worsh ip the


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ent i ty in quest ion being accused 1 in th is regard is not

funct iona l to be prof i table your worsh ip. Th i rd ly most

important ly your worsh ip accused be ing accused 1 has not

amass substant ia l propert ies in th is regard to warrant i t to be

regarded as af f luent and in f i nancia l pos i t ion to d isperse of

bus iness of the day. But most important ly your worship the

accused also pleads and i t makes as an of fer on the charges

as proven against h im an of fer of rehabi l i ta t ion of the consent

area your worsh ip in regard to that .

Of f course on the basis of what the state wi l l be ab le 10

as per app l icat ion for the rehabi l i ta t ion can quant i f y an

amount to dea l wi th such rehabi l i ta t ion your worsh ip. Th is is

of fered wi thout even though i t is a concomitant requ i rement in

law the accused of fers that as a rec iproca l acknowledgement

of i ts gu i l t in th is regard your worsh ip.

In that regard the accused wishes for len iency in that

regard as would have been d iscussed wi th prosecut ion wi th

what the custodia l of fer would be your worsh ip . Unless y our

worsh ip wants me to address your worsh ip on something in

par t icu lar. 20

COURT: Is he marr ied?

MR MOTSIRI : Your W orship let me just get inst ruct ions.

COURT: Does he have chi ldren, h is f inancia l

commitments, is he st i l l employed?

MR MOTSIRI : Your W orsh ip I wish to k ind of fo l low the


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quest ions that your worsh ip asked but a lso subject to that the

court understand that th is p lea is a p lea nomino of f ic io. The

accused tenders a p lea in that the accused is not employed at

the moment your worsh ip and he is no t der iv ing any benef i ts

nor is he funct iona l in a pecu l iar , considerate employment.

That accused is a lso marr ied your worship wi th three minor

chi ldren. That notwi thstanding the accused is in support of

the l iab i l i ty of the three minor ch i ldren your wors h ip.

COURT: Are the ch i ldren at tend ing school and i f that

is the case are they tert ia ry, h igh school, and preschool, what 10

is happening? His f inancia l commitments?

MR MOTSIRI : Your worsh ip my inst ruct ing is that

accused’s ch i ldren one is in ter t ia ry ins t i tut ion, one is at

midd le school the other one is at pr imary and the wi fe is in

subsistence wi th the chi ldren ’s wel lbeing your worship

inc lusive of f course of the accused h imself .

COURT: Is that a l l?

MR MOTSIRI : Besides the fact that my learned col leag ue

ind icated to the court that there are no previous convic t ions

or pending convic t ion. That wi l l be the sum to ta l of the p lea 20

to your worsh ip.

COURT: Address on sentence PP?

PROSECUTOR: May i t p lease the court . Your W orship on

sentence i t is the s ta te ’s submiss ion that a l though the

accused p leaded gu i l ty in terms of Sect ion 112 of the Cr imina l


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Procedure Act 51 of 1977 i t is my humble submiss ion that the

of fence of which the accused’s company has been convic ted

on is a very ser ious of fence. Your W ors hip i t is my

submiss ion that the court is not dea l ing wi th an ord inary

person, the accused was invo lved dur ing the process of the

appl icat ion. He appl ied to the department of minerals , he

also appl ied to the department of wa ter and the department of

envi ronmenta l and I be l ieve to the province as to tour ism.

Your W orship a l l these appl icat ions were done

through experts. The accused commenced or a l lowed h is 10

company to commence wi th l is ted act iv i t ies wi thout

author isat ion knowing very wel l that the docume nts that he

had suppl ied to the experts to ass ist h im in the appl icat ion

had some shortcomings in the sense that he was requested

by the experts to supply outs tanding documentat ions and he

did not do that .

He nevertheless went ahead with the act iv i t ies a nd

even at that t ime when the appl icat ion was done your worsh ip

they had al ready commenced wi th th is l is ted act iv i t ies wi thout

author isat ion. The appl ied for rect i f ica t ion to the department, 20

when they were requested to submit informat ion such

informat ion was not for thcoming through the i r experts .

Your W orship wi l l not ice on the photographs that we

handed in there are f ive areas that were ef fected and these

f ive areas wi l l requi re rehabi l i tat ion to be done. Your Worship


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wi l l not ice that in some of the pho tographs that were handed

the area where the act iv i t ies were taking place are next to a

resident ia l area. There are houses next to that area and

these houses are now exposed as a resu lt of the conduct of

the accused’s company. The f i rst area your worsh ip was the

br ickyard area and the second area was Kghosi min ing and

the th i rd area was Hi l l top Min ing Pit , the four th area was

Hi l l top min ing pi t , the f i f th area was Hi l l top above the

br ickworks.

Your W orsh ip wi l l not ice on the p ictures that there 10

were ser ious so i l eros ions in a l l these areas. Your Worsh ip i t

is my submiss ion that th is was a cr ime of greed i t was not a

cr ime of need. The accused registered h is company fu l l y

aware that here are processes that he had to go through

before they cou ld commence wi th the l is ted act iv i ty.

Your W orship on the quest ion of rehabi l i tat ion the

quantum thereof i t is my submission that for the accused to

do the rehabi l i tat ion there are cer ta in gu ide l ines issued by

the Department o f Minera ls and Energy for rehabi l i tat i on of

min ing development. 20

The accused can not just go on si te and star t

rehabi l i tat ion on h is own. He has to fo l low cer ta in gu ide l ines.

Th is rehabi l i tat ion has to be in terms of regu la t ion 54 of the

Minera l and Petro leum Resources Development Act 2002 that

is Act 28 of 2002. The contents of the provis ion of


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rehabi l i tat ion must be based on the approved envi ronmenta l

management p lan. The assessment has to be based on the

inspect ion of the s i te and the basel ine s tar t to be done of the

envi ronment as set out in the gu idel ines. The quantum for

rehabi l i tat ion assessment of the envi ronmenta l rehabi l i tee are

determined by the department your worsh ip. I t is not

determined by the accused. The accused can not come to

court and of fer quantum for rehabi l i tat ion . The department is

responsib le to do that .

Your W orship i t is my submission that there is a 10

prescr ibed penal ty c lause in terms of the Nat ional

Envi ronmenta l Management Act as far as th is cont ravent ion of

these l is ted act iv i t ies is concerned your worsh ip. Your

Worship is in a very d i f f icu l t pos i t ion the accused has not

taken a stand to exp la in under oath to th e court why he did

what he d id to take the court in h is conf idence.

Th is is not a t r iv ia l matter i t is a very ser ious matter.

i t may look t r iv ia l in the eye of an ordinary person but i t has

got ser ious envi ronmenta l impact as far as that area is

concerned. Dur ing ra iny seasons l ike th is the houses next to 20

that area are exposed they may col lapse.

There is a r iver a long that area i t is a wel l k nown

r iver and al l th is ext ract ion was conducted f rom a very

sensi t ive area. Your worsh ip the accused’s company i t is my

submiss ion that they benef i ted in the cr ime that they


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commit ted. There was f inancia l benef i t your worsh ip , they

were manufactur ing clay br icks and those br icks were sold to

members of pub l ic. The accused’s company d id not have a

l icence on the other s ides they on ly had l icence to conduct

act iv i t ies on the other s ide. Your W orship may I just take

inst ruct ions on th is aspect, I just wan t to make sure that I

address the court proper ly?

COURT: Yes.

PROSECUTOR: Your W orsh ip the informat ion we have is that

they on ly had l icences or a permi t on two s i tes, the o ther 10

th ree s i tes they did not have a permit to conduct act iv i t ies.

COURT: On how many s i tes?

PROSECUTOR: Two si tes. The l icence was granted for

those si tes and by the t ime the accused and I submit wi th

respect that th is is an aggravat ing factor, by the t ime the

accused commenced wi th the act iv i t ies in quest ion thei r

min ing r ights l icence had lapsed.

They were supposed to perform th is act iv i ty wi th in a

par t icu lar per iod a f ter the mining r ights l icence or permit was

granted by the department. I submit your worsh ip that th is is 20

an aggravat ing factor that the court should take in to account.

The fact that accused pleaded gu i l ty to the of fence

charged I submit wi th respect that i t is not a mit igat ing factor.

Even i f he did the state had a st rong case against the

accused, he was cornered he could not run away, the


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company cou ld not run away. The state had st rong evidence

against the company. I t is my submiss ion that an appropr iate

sentence should be enclosed by the honourab le court . The

court order that the company should in i t iate the rehabi l i tat ion

process. Your W orship may I j ust approach the defence?

Your W orship i t is my submission that the order

should be made as part of sentence that the accused’s

company should in i t ia te the rehabi l i tat ion proces s by

approaching the department wi th an envi ronmenta l

management p lan based on the gu ide l ines by the department 10

of the department by the end of February.

That the, I do not have the fu l l detai ls of how the

in terna l processes work in the department. W hether how are

they go ing to put th is rehabi l i tat ion process your worsh ip, I

would l ike to bel ieve that the department and the accused

would l iasse to d iscuss th is aspect o f rehabi l i tat ion because i f

the company does not comply wi th certa in gu ide l ines I do not

know whether i t wi l l amount to contempt of order.

I would l ike to be l ieve that that would amount to a

contempt of cour t . So my submiss ion is that by end of 20

February that is 28 February the accused should have

in i t iated the rehabi l i tat ion program by approaching the

department wi th an envi ronmenta l management p lan to enable

the department to appoint a th i rd par ty to do the

rehabi l i tat ion. I t is the department that is supposed to


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appoin t a th i rd party to do the rehabi l i ta t ion i t is not the

accused. I am informed that is how i t works in the

department. Unless there is another a spect that the court

wants me to address on these are my submiss ions.

COURT: You must be speci f ic when you say the court

must impose an appropr ia te sentence. Be speci f ic.

PROSECUTOR: Your W orship the appropr ia te sentence is

based on the penal ty c lause in terms of the act . In the event

however the court is not convinced that the penalty c lause

wi l l be appropr iate i t is my submiss ion that a reasonable 10

amount of f ine wi l l be appropria te . May I just approach my. . . .

MR MOTSIRI : Your W orsh ip i f I may subjec t to the

approva l of f course i f my learned co l league wants to take

inst ruct ion and d iscuss an issue wi th me would i t be too late

your worsh ip to a las a minute in par t icular just to g ive me that

aspect so that we better advise the court on what to do

wi thout be ing uncerta in about i t?

COURT: Okay. Court adjourns just for two minutes.

COURT ADJOURNS COURT RESUMES

PROSECUTOR: May i t p lease the court your worsh ip . Your 20

Worship as I addressed the court ear l ie r the prescr ibed

penalty c lause is R5 000 000.00 in the event the court on

inqu i ry into the f inancia l sta tus of the accused’s company is

of the view that the R5 000 000.00 prescr ibed in the act is too

much i t is my submission that an appropr iate sentence in that


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regard should be imposed. I leave aspe ct on quantum in the

hands of the court . I wish however to caut ion the court that

as far as the rehabi l i ta t ion costs are concerned i t is the

department that is go ing to deal wi th that . So that should not

inf luence the court whether the rehabi l i tat ion cost is go ing to

be R5 000 000.00 or less than R5 000 000.00 i t is the

departments responsib i l i ty, i t should not inf luence the court .

What should inf luence the court is what we have presented to

the court and what the prescr ibed penalty c lause states.

I have found that the accused’s company is no longer 10

operat ing. Maybe the defence wi l l be in a bet ter pos i t ion to

address the court about that . I just wanted to br ing to the

at tent ion of the court that I be l ieve that the company is no

longer operat ing. That is my submiss ion that they made

money out of th is by commencing an act iv i ty wi thout a permit

as the court p leases.

COURT: State how many s i tes are supposed to be

rehabi l i tated?

PROSECUTOR: Al l of them your worsh ip a l l f ive s i tes. The

basis upon which I am making th is submiss ion is that at the 20

t ime the accused’s company commenced wi th th is act iv i ty

thei r min ing r ights l icence have lapsed. As the court p leases.

COURT: When we ad journed earl ie r on the state and

the defence were go ing to d iscuss about c erta in aspects and

i t seems I was never addressed on that aspect.


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PROSECUTOR: The quantum the amount of the f ine.

COURT: Yes.

PROSECUTOR: Your W orsh ip maybe the defence should

start on that aspect .

COURT: Okay.

MR MOTSIRI : Your W orsh ip I do not kno w why my learned

col league wants to pass the bar to me . I am not at th is t ime

go ing to coerced to start someth ing that my learned col league

by law is ob l iged to deal wi th.

A simple issue was ra ised by th is honourab le court 10

about what is i t p recise ly th at the prosecut ion wants to

commence as an aspect re lat ing to penalty be ing deal t wi th

par t icu lar penalty and I th ink i t is imprudent on me to impress

on th is honourab le court that we d id tender which tender was

then accepted wi th my learned col league and my learned

col league has an ob l igat ion in terms of the ru les of th is court

to deal wi th that par t icu lar aspect wi th th is part icular court

and I st i l l request that my co l league wi th that issue your

worsh ip and I say that wi th respect.

PROSECUTOR: Your W orship the Cr imina l Procedure Act is 20

c lear on that and the act says upon convic t ion and when the

court imposes a sentence of a f ine the court must wel l and

enqu ire on the af fordabi l i ty. I hope I am not referr ing your

worsh ip to the wrong procedure but I know i t is appl icable

a lso on ba i l . There is noth ing that prevents the court on


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conduct ing an inqui ry on af fordabi l i ty. I f the court is incl ined

to ho ld inqu i ry on af fordabi l i ty therefore i t means that the

defence should te l l the court how much the i r c l ient can af ford

to pay as f ine and why they are saying the accused cou ld

af ford so much and why the accused can not af ford so much.

They are the ones that are mit igat ing, I am not mit igat ing your

worsh ip . I can not mit igate I can on ly te l l the court that I am

asking the court to ass ist which wi l l be in the best in terest of

just ice because the accused did not te l l the court about h is

f inancia l status whether the company is s t i l l operat ing or not . 10

I was just informed that they are no longer operat ing

that is why I made such submiss ion that the company is no

longer operat ing but defence wi l l te l l the court more about the

f inancia l status of the accused’s company.

COURT: Yes actua l ly when we ad journed i t was for

how much can he afford and take in to account that he is

offer ing to rehabi l i tate the si te .

PROSECUTOR: Yes.

COURT: So i t is for the defence to te l l the court .

MR MOTSIRI : As the court p leases. Your W orship the 20

fo l lowing is what has been d iscussed and have been of fered

to the prosecut ion, before I do that permit me wi th respect to

l iasse my submiss ion to you on the basis of what my

col league convenient ly decides to hear when he wants to and

forget when he wants. I t is the tender before th is honourab le


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court on behalf o f accused 1 and 2 respect ive ly a nd 2 in

par t icu lar nomino of f ic io but the fo l lowing are the subst ratum

of the f inancia l ( inaudib le) of both the accused 1 and 2. 1)

That accused 1 is no more operat iona l. 2) That accused 1

ho ld no substant ia l asset upon which on l iqu idat ion i t could

ef fect an equini ty both on 1 and 2 e i ther way. I t is a lso c lear

tender before th is honourab le court that accused 2 is

unemployed at the moment . Accused 2 is a marr ied

ind iv idual , accused 2 has three minor chi ldren a l l of whom are

under support base of the gu ard ian parents accused 2 being 10

one of them.

That issue I must po in t out your worsh ip that no

issue has been jo ined by prosecut ion about the accuracy of

those tender before th is honourable court . Therefore th is

cour t can assume that to be common cause be cause no issue

has been jo ined in that regard.

But furthermore and most important ly when we asked

for your worsh ip ’s indu lgence the issue was to d iscuss wi th

the prosecut ion what the accused cou ld be ab le to a f ford in

th is regard and I am go ing to deal w i th that immediate ly. 20

1 ) The of fer of R20 000.00 as a deferred payment

has been tendered sp l i t in month ly payments of R5000.00

f rom the date on which th is court can impose that the

payments run. We have a lso conceded to a fact that the act

makes i t a prerequis i te that i f the court is to f ind us gu i l ty on


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those part icu lar charges of exerc is ing l is ted act iv i t ies without

the proper l icence be ing in p lace e i ther by vi r tue of i ts laps ing

or by vi r tue of i t not be ing in operat ion but your worsh ip

should as prescr ibed by the act order for rehabi l i tat ion and

th is rehabi l i tat ion re lates to a l l s ides at which operat ions were

in p lace. I just wish a lso to ra ise your worsh ip f rom what I

have been to ld is that in any event there are in p lace an

envi ronmenta l management p lan that have al ready been

accepted by the department .

What becomes outstanding i t is the updates thereof 10

which the accused undertake to deal wi th as i t fo l lows the

procedure of rehabi l i ta t ion dic ta ted by the act and the

department. Your W orsh ip in c los ing I wish to point out that

what has been tendered now i t not new i t has been tendered

ear l ie r when Your W orsh ip asked precise ly what the f inancia l

pos i t ion of the accused were.

That has been tendered to th is court and there is

nothing unwanton in that presentat ion that th is court can not

accept as t ruthfu l un less i f my learned col league by

procedure would have jo ined issue with the accuracy of that 20

in format ion th is honourab le court would have to accept that to

be the case un less someth ing unwanton revo lves around that

your worsh ip .

But just as a set of completeness your worsh ip my

learned co l league ra ised an issue that your worsh ip should


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not take cognisance of the fact that a tender of a p lea of

admiss ion of gu i l t should not have the weight i t i s supposed

to have. That is base less in law, i t is wrong on logic and fact

and th is cour t should know that i t is t r i te law that where an

accused p leads gui l ty at the incept ion of the t r ia l such tender

should be taken cognisance of when the court decides o n the

evidence before i t and the sentence to be imposed. The fact

that a tender of p lea the p lea of gu i l ty has been tendered at

the incept ion of the t r ia l denotes not on ly the remorsefulness

of a person p lead ing such but a lso the tak ing into que of the 10

t ime of th is honourab le court in respect thereof .

Therefore i t is un thought of that my learned

col league would make such a statement that the court should

not take in to cognisance in consider ing the appropr iate

sentence whether the accused d id not tender a p lea of gu i l t at

the incept ion wi thout the waste of the court ’s t ime.

I say your worsh ip should wi th respect take that fact

in to cognisance for what i t is in t r i te and in law a

considerat ion for a p lea of gu i l t wi thout necessar i ly wast ing

the court ’s t ime. Unless your worsh ip has something speci f ic 20

i t wants me to address. As the court p leases.

COURT: Is that a l l?

PROSECUTOR: No further submiss ions as the court p leases.

COURT: When you in t roduced th is case you indicate

that there is advocate who?


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PROSECUTOR: Advocate Mashimbye f rom the Asset

Forfe i ture Unit of the Nat iona l Prosecut ing Author i ty .

COURT: Yes.

PROSECUTOR: I wi l l leave him to address the court .

COURT: Yes advocate?

MR MASHIMBYE: May I address the court f rom where I

am?

COURT: Yes you may proceed.

MR MASHIMBYE: As my co l league have indicated I am

f rom the Asset Forfe i ture Unit of the Nat iona l Prosecut ing 10

Authori ty wi th the in tent br inging an appl icat ion in terms of

Sect ion 18 of the Prevent ion of Organised Cr ime Act 121 of

1998. I prepared a copy of the appl icat ion which I wish to

hand in and also to hand a copy to the accused as wel l . May

I do so?

What the appl icat ion is a l l about your worsh ip in

asking the honourab le court to conduct the inqu i ry in terms of

Sect ion 18 (1 ) in to any benef i t wh ich the defendants be ing

both accused 1 and 2 may have der ived f rom the of fence wi th

which th is court has convicted them of . 20

I would l ike to point out one issue on my appl icat ion

which is po in t 2.2. I wanted to ask the court to gran t an order

in terms of paragraph 1, 2 and 3 immediate ly but I wi l l ask the

court to proceed wi th that but we would l ike to proceed wi th

2.3 which is to refer the defendant to Sect ion 21 of the


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Prevent ion of Organised Cr ime Act and to exp la in the

contents thereof . And to assis t the court what Sect ion 21

entai ls i t s imply entai ls that s ince wel l th is app l icat ion has

been launched i t is for the defendant i f he wishes to do so to

f i le any papers in d ispute of the appl icat ion that we are

br inging and a lso for the appl icant the NDPP to f i le i ts papers

to support the appl icat ion s ta t ing that indeed both they

benef i ted f rom the of fence of which they have been convic ted

of .

Last ly which is po in t 4 ask ing the court to postpone 10

the sa id determinat ion or the sa id inq u i ry as i t is ind icated in

Sect ion 18 (3) so as not to waste the court ’s t ime in terms of

proceeding wi th the other aspects of th is mat ter or of the

cr iminal matter wh ich is the issue of sentencing.

We are ask ing the court to postpone th is part icu lar

inqu i ry to a part icular date and le t the court proceed wi th the

sentencing in the cr iminal mat ter . That wi l l be al l what we

are br inging.

COURT: Mr Maponya s ince there is an appl icat ion by

the s ta te in terms of Sect ion 18 of Act 121 of 1998 you have 20

got the r ight to lega l representat ion. The court wi l l g ive you

an opportuni ty to dec ide whether you engage the very same

team of at torneys and advocates or you wi l l engage the

at torney of your own choice. You must know that th is

app l icat ion is about the benef i ts that you cou ld have der ived


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dur ing the operat ion of your company therefore i t is a

conf iscat ion order that has to be determined by th is court

whether you der ived any benef i ts f rom the sa id company.

Th is mat ter wi l l be postponed to a cer ta in date so tha t you

can be ab le to prepare yourse l f s ince you are unrepresented

at th is stage unless i f you have arranged anybody amongst

the two.

ACCUSED: Well understood.

COURT: I need conf i rmat ion f rom the two teams the

two gent lemen before th is court Mr Raphesu i s an a t torney 10

and Advocate Mots i r i whether you are plac ing yoursel f on

record or accused wi l l s t i l l dec ide on that?

MR MOTSIRI : Your W orsh ip i t is c lear that the appl icat ion

that is before you is a tota l ly d i f ferent app l icat ion to that of

the f i rs t app l icat ion but most important ly i t is to serve as

mit igat ion by ambush both on the court , on the team as wel l

for the simple reason that there cou ld not have been an

ant ic ipat ion of th is app l icat ion but however the NDP has a

r ight to decide what i t wants to do.

But to answer that quest ion d i rect ly your worsh ip we 20

hold no inst ruct ion in that regard and equal ly I must haste

in to p lace the fo l lowing on record, NDP by i ts own act ion

should know that representat ion by i ts known sel f is not on ly

enough to g ive inst ruct ion i t is a considerat ion by a person

before th is court to appoint the appropriate lega l


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representat ion based on the i r profess ion and expert ise in that

regard but a lso proper consultat ion is what const i tute

secur ing of lega l representat ion. I t is not enough to rock up

in cour t , serve papers and seem to th ink you have got i t a l l

under wraps. I t does not work that way. I just wanted to

c lear that your worsh ip so that whether we ge t to be

inst ructed or not that can not be as a matter of fact the heart

and pass through of whether we are on break today or not . I

respectfu l ly submit that that is our case.

COURT: Did you have any date in mind s i r? 10

MR MASHIMBYE: I do not have any date in mind your

worsh ip .

COURT: I am go ing to buy you a da i ry.

MR MASHIMBYE: I do have my da i ry I th ink I am open for

the better part of th is month or next month.

COURT: Can we t ry 28 March?

MR MASHIMBYE: 28 of March wi l l be f ine . Maybe I wi l l

not l ike to engage much in what my co l league have said I do

not th ink there is a necessi ty for me to rep ly anything

because I th ink we wi l l just waste the court ’s t ime in 20

spreading al legat ions of issues wh ich are ne i ther here nor

there.

COURT: I t is f ine.

MR MOTSIRI : Your W orship may I just dea l wi th th is

par t icu lar aspect , I th i nk my co l league says there are words


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that wi l l be spreading I just want to f ind out what my

col league is saying?


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COURT: That invo lve in a d ia log, the message is about

informing the accused about the inst i tut ion of th is separate act ion.

So whatever has been sa id wi l l never have any effect on anything

because th is is a separate appl icat ion.

MR MOTSIRI : Indeed your worsh ip .

COURT: This is a inst i tu t ion of a separate appl icat ion f rom

the one that you came for so I th ink let us just c lar i f y that . An

inqu i ry has got to be done a conf iscat ion enquiry in re lat ion to

paragraph 5 and 10 therefore th is matter is postponed unt i l 28

March but i t wi l l not be for inqu i ry, for accused to consult wi th h is

at torney. Thereaf ter we wi l l get f rom accused whether he wi l l

p roceed on h is own or not . But we have not f ina l ised the

sentencing stage, you are excused s i r.

MR MASHIMBYE: As the court p leases.

COURT: Sentencing s tage is one of the d i f f icul t parts for

any pres id ing off icer be i t ch ief just ice and a lso the lowest rank of

the pres id ing off icers. Be that as i t may however the court wi l l have

to proceed.

In arr iv ing a t an appropriate sentence the court takes into

account the general pr incip les of pun ishment be ing the personal

c i rcumstances of the accused, the natu re of the offence or offences

that he has been convic ted of as wel l as the interest of soc ie ty.

Before we can proceed how old is the accused?

MR MOTSIRI : 47 Your worsh ip.

COURT: And when was the company found?


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MR MOTSIRI : 2001.

COURT: The court taking in to account the accused is 47

years. . . ( intervened)

MR MOTSIRI : Your worsh ip the actua l corporat ion s tar ted in

2007.

COURT: Okay. The court takes in to account that he is 47

years o ld, he is marr ied wi th three k ids. The f i rst one is in ter t ia ry,

the second one at middle school and the last one is do ing pr imary

school. The defence went on to address the court that the accused

is unemployed.

When coming to the issue of sentence the court wi l l use the

gu idel ines which were c lear ly c i ted in the case o f State v Khumalo

1973 vo lume 3 SA 697 i t is an Appel late Divis ion case by Holmes

JA. I quote “Punishment must f i t the cr imina l as wel l as the cr ime,

be fa i r to society and be b lended wi th a measure of mercy according

to the ci rcumstances. ”

In the case of state v Z inn 1969 vo lume 2 SA page 537 i t is

a lso Appel la te Div is ion case the fo l lowing was sa id “what has to be

considered is the t r i te consist ing of the cr ime, the offender and the

in terest of the soc ie ty. ” W hen coming to the nature of the offence

that the accused has been convic ted of i t is a very ser ious offence.

The court can not overemphasize that fact . The publ ic prosecutor

ind icated that the act iv i t ies caused serious so i l eros ion in the

surrounding area. The court takes jud ic ia l not ice of th e fact that

now i t is ra iny season obvious ly the res idents of that area are


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affected by the damage. W hen coming to the in terest of the soc iety

i t is sa id that just ice must be seen to be done.

When coming to that aspect the court wi l l refer to the case

of state v Mahlalasa 1997 vo lume 1 SACR page 515 i t is a Supreme

Court of Appeal case whereby Judge Harmse JA had the fo l lowing to

say “The ob ject of sentencing is not to sat isfy pub l ic op in ion b ut to

serve the publ ic in terest . A sentencing po l icy that cat ers

predominant ly and exc lus ive ly for pub l ic op in ion is inherent ly

f lawed. I t remains the court ’s duty to impose fear lessly and

appropriate and fa i r sentence even i f the sentence does not sat isfy

the publ ic. ”

Now when looking in to the appropr iate sentenc e the

quest ion is whether by tak ing the accused to ja i l fo r ten years wi l l i t

serve any purpose to the ci t izen of that part icu lar p lace or the

residence of that par t icu lar p lace where damage has been caused.

From the address the impress ion that was creat ed by the

state is that a lot of ser ious eros ion was caused by the act iv i t ies of

the accused’s company therefore there is a d i re need for the

accused to start the rehabi l i tat ion process. I th ink that on i ts own

wi l l save or wi l l assis t the res idents of th ose areas which were

affected by th is operat ion. Even i f the accused can be ordered to

pay a f ine of R5 000 000.00 the quest ion is whether that R5 000

000.00 wi l l be used for the benef i t of the residents who were

af fected by these operat ions. The answer is no, the R5 000 000.00

wi l l go into the cof fers of the Department of Just ice and the af fected


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residents wi l l cont inue to suf fer.

Therefore i t is upon th is cour t to see to i t that an

appropriate sentence must be the sentence that wi l l benef i t the

community and at the same t ime must deter the accused f rom

commit t ing the same of fence. State what is the names of the

places, you sa id Hi l l top 1, 2 , 3 and the next?

PROSECUTOR: I t is Br ickyard area.

COURT: Where is i t s i tuated?

PROSECUTOR: Al l these areas your worsh ip are s i tuated at

Nt lhavene va l ley.

COURT: The second one is ca l led?

PROSECUTOR: The second one is Kghoshi [spe lt into record]

min ing pi t and the th i rd one is Hi l l top min ing p i t .

COURT: How do you spe l l p i t?

PROSECUTOR: Pit [spe lt into record ] .

COURT: The fourth one?

PROSECUTOR: The fourth one is Hi l l top min ing p i t 2 .

COURT: Do you have a Hi l l top mining 1?

PROSECUTOR: No i t just says Hi l l top min ing pi t . I t looks l ike th is

is how the department ident i f ied the areas dur ing the t ime when th e

accused’s company appl ied for min ing r ights.

COURT: Okay. Then the f i f th one?

PROSECUTOR: The f i f th one is Hi l l top above the br ick works.

COURT: Is i t the last one?

PROSECUTOR: Th is is the last one yes.


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COURT: Can we ad journ just for a few secon ds just to

f in ish.

COURT ADJOURNS COURT RESUMES

COURT: When tak ing in to account the personal

c i rcumstances of the accused, the nature of the offence that he has

been convic ted of as wel l as the interest of the soc ie ty the court

f inds that the most appropriate sentence wi l l be as fo l lows, the

accused is sentenced to f ive years imprisonment which is

wholly suspended for a period of f ive years on condition the

accused is not convicted again of contravening the provisions

of Section 24 (F) (1) Act 107 o f 1998 committed during the

period of suspension .

And on condition that the accused rehabil i tates al l the

areas which were damaged by these mining activi t ies to wit 1)

Brickyard area, 2) Kghoshi mining pi t, 3) Hi l l top mining pi t, 4)

Hil l top mining pit 2, 5) Hil l top above the brickworks. The

rehabil i tation process must have been completed on or befo re

30 Apri l 2014 . What i t means s i r should you fa i l to comply wi th

these condit ions you have to go serve f ive years impr isonment. S i r

you must l is ten to the exp lanat ion by th is court which is very

important . I f you are not sat isf ied about the convic t ion and the

sentence you have got r ight to apply for leave to appeal.

Such appl icat ion must be done wi th in 14 days f rom today.

Should your app l icat ion for lea ve to appeal succeed the t ranscr ibed

record wi l l be forwarded to the High Court for the mat ter to be


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looked in to whether you were properly convic ted and sentenced.

Should the High Court f ind that you were not proper ly convic ted the

convic t ion and the sentence wi l l be set as ide.

However should the High Court f ind that you were proper ly

convic ted but the sentence is too harsh the convict ion wi l l be

conf i rmed by the sentence wi l l be al tered. You may st i l l inst ruct

your own team of lega l rep or you can inst ruct another at torney or

approach the c lerk of the cr imina l court to ass ist you wi th the

appl icat ion for leave to appeal. Do you understand si r?

ACCUSED: Well understood.

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COURT ADJOURNS

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in the magistrates court for the regional … · in the magistrates court for the regional division...

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