South Africa: North Gauteng High Court, Pretoria

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 25/8/2015

CASE NO: Review 260/15

In the matter between:

THE STATE

and

BLUE PLATINUM VENTURES  (PTY) LIMITED                                                 Accused No 1

MATOME SAMUEL MAPONYA                                                                         Accused No 2.

JUDGMENT

Tuchten J:

1. This matter comes before me on automatic review, following a query by Hiemstra AJ. The accused stood trial in the regional court at Lenyenye. They were charged together with a number of other persons on fourteen counts under the Minerals and Petroleum Resources Development Act, 28 of 2002, the National Water Act, 36 of 1998, the Regulations on Use of Water made under the National Water Act and the National Environmental Management Act, 107 of 1998.

2. When the trial was called before the regional magistrate, the prosecutor withdrew against all the accused except those persons I have described in the heading to this judgment as accused nos 1 and 2, whom for purposes of this judgment I shall call the accused. The proceedings in the court below were somewhat confused because when the matter was called, Mr Matome Samuel Maponya was cited as accused no 7. But after the withdrawals against the other accused mentioned, Mr Matome became accused no 2.

3. The accused were represented, according to the record, by Adv Motsiri. Through Adv Motsiri, the accused pleaded guilty on count 14, a failure to comply with s 24F(1) of the National Environmental Management Act. This plea was confirmed in a statement in terms of s 112 of the Criminal Procedure Act, 51 of 1977, signed by accused no 2 on his own behalf and on behalf of accused no 1, of which accused no 2 was a director.

4. The prosecutor then withdrew all the charges against the accused as described inthe heading except for count 14. The regional magistrate then proceeded, pursuant to the plea of guilty, to convict accused no 2, ie Mr Maponya, on count 14 but omitted to pronounce on the merits in relation to accused no 1, ie Blue Platinum Ventures (Pty) Limited. The regional magistrate then sentenced Mr Maponya to five years imprisonment, suspended for five years on certain conditions. The regional magistrate passed no sentence on Blue Platinum Ventures (Pty) Limited.

5. The matter came before Hiemstra AJ after the Department of Environmental Affairs brought the situation caused by the failure to convict and sentence Blue Platinum Ventures (Pty) Limited on its plea of guilty to the attention of the Director of Public Prosecutions in a helpful memorandum, the handwritten date on which is unfortunately illegible. Hiemstra AJ invited comment from both the DP and the regional magistrate.

6. All concerned submit that an irregularity has occurred and that the case should be remitted to the regional court with a direction to the regional magistrate to remedy the omission to pronounce in relation to Blue Platinum Ventures (Pty) Limited on its plea of guilty and then, if so minded, to pass sentence on Blue Platinum Ventures (Pty) Limited. I agree and shall make an appropriate order.

7. There is one further matter which Ishould mention. Hiemstra AJ gave the magistrate certain advice on the strength of allegations that there had been a failure by Mr Maponya to comply with the conditions of his suspended sentence. In that regard, I shall say no more than that when and if this  issue is properly brought before the court, the regional magistrate should act in accordance with law. I have no jurisdiction to trespass on the prerogatives of the regional court in a matter not yet before it.

8. I make the following order:

Case no RN126/13 in the regional court of Limpopo Province held at Lenyenye is remitted to that regional court for the purpose of enabling the regional magistrate who presided at that trial, Ms CT Honwana (or, failing her, another regional magistrate appointed to do so by the President of the Regional Court) to consider whether or not to convict accused no 1 in that case, Blue Platinum Ventures (Pty) Limited, on its plea of guilty and, if applicable, to pass sentence accordingly on Blue Platinum Ventures (Pty) Limited.

____________________

NB Tuchten

Judge of the High Court

19 August 2015

Iagree.

___________________

EM Kubushi

Judge of the High Court

19 August 2015

BluePlatinumR260.15