Amendment versus substitution: Applying s 270 of the Criminal Procedure Act in the interest of justice

August 1st, 2022

Picture source: Gallo Images/Getty


The recent decision from the Limpopo Division High Court in Polokwane in S v Modimolla (LP) (unreported case no 02/2022 A290/2021, 18-2-2022) (Muller J) illustrates both the commitment of the magistracy to the administration of justice and the ability of the judiciary to self-correct when necessary. In a special review, Muller J (Makgoba JP concurring) considered whether the matter was conducted in accordance with justice. In this analysis we, however, suggest an alternative approach to that of the High Court.

The accused, who enjoyed legal representation, tendered a guilty plea to a charge of contravening s 39(1)(k) of the Arms and Ammunition Act 75 of 1969 (the Act) of an offence that was committed on 2 May 2021. The issue is that the Act had been repealed and replaced by the Firearm Controls Act 60 of 2000 (the FCA) with effect from 1 July 2004, some 16 years earlier (see s 153 of the FCA). The magistrate, however, convicted the accused of contravening the provisions of s 39(1)(k) of the Act. Before the passing of sentence, the charge sheet was replaced by agreement between the parties with one citing a contravention of s 120(8)(b) of the FCA. The accused was then again convicted, but now of the latter offence.

Section 39(1)(k) of the Act and s 120(8) of the FCA both criminalise the loss of a firearm, or the loss through theft, due to a failure to properly lock it away in a prescribed safe, alternatively due to a failure to take reasonable steps to prevent such a loss. The synergy and similarities between the two pieces of legislation is evident and was accepted by the court, in casu (at para 10). The FCA, in fact, also acknowledges this synergy, as it regulates the transition from the Act in sch 1. It provides that despite the Act having been repealed, any person who, before such repeal, committed an act or omission, which constituted an offence under the Act, and which constitutes an offence under the FCA, may after the FCA takes effect be prosecuted under the FCA.

Section 86 of the Criminal Procedure Act 51 of 1977 (the CPA)

Section 86 of the CPA provides for the amendment of a defective charge if it appears that the averments are not aligned with the evidence, that words are omitted or included, which should have been included or excluded, or where there is any error in the charge. The court is empowered to amend at any time prior to judgment, if there is ‘no prejudice’ to an accused. In S v Kruger en Andere 1989 (1) SA 785 (A) the court defined an ‘amendment’ as the retention of a measure of that which is amended. A distinction should also be made between ss 86 and 88, both sections aiming to achieve more or less the same results, but with totally different application and requirements in law. This article exclusively deals with the first mentioned.

Section 270 of the CPA provides that whenever the evidence presented at a criminal trial fails to prove the elements of the offence so preferred but proves the commission of an offence which by the nature of the latter’s essential elements is incorporated in the original offence so charged, a conviction may follow for the offence so incorporated. The only qualification is that the original offence may not be an offence referred to in Chapter 26 of the CPA.

The difference between an amendment and a substitution is not easy to define (see Kruger). There is a wealth of cases supporting this notion.

In S v Mahlangu 1997 (1) SACR 338 (T) Stafford J (Van der Walt DJP and Van der Merwe J concurring) considered a matter referred for special review in terms of s 304(4) of the CPA. The issue was the conviction on a charge of bribery. The accused was also represented by an attorney in that matter. The common law offence of bribery had already been repealed almost four years before the commissioning of the offence created by s 1(1)(a)(i) of Corruption Act 94 of 1992. With reference to two unreported judgments, S v Shongwe (TPD) (unreported case no A563/94, 5-4-1994) and S v Tshabalala (TPD) (unreported case no A500/93, 30-3-1993), wherein both held that an ‘amendment’ from the common law offence of bribery to the subsequent statutory offence, constitutes a substitution rather than an amendment, the court strongly disagreed. The court emphasised that each case should be judged on its own merits and found that the statutory offence of corruption is essentially the same as the common law offence of bribery. Therefore, the court ruled that an amendment would not constitute a substitution in that instance. The reviewing court is empowered to grant an amendment. The court then investigated the issue of prejudice and found none. The court also considered practical implications if such an order was to be refused. This would ordinarily entail a new trial, with possibly the exact same result. This, according to the court, would ultimately have been more prejudicial to the accused.

In S v Motha 2012 (1) SACR 451 (KZP) the accused was arraigned on the common law offence of rape instead of contravening s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the SOA). The court found that the averments in the charge sheet constituted the statutory offence. As such, the accused was not charged with a non-existent offence, and the charge sheet could have been amended. The court was clear that on the strength of s 68 of the SOA the crime of rape was not abolished, but merely that the common law related thereto, was. The new statutory offence expanded on the common law crime of rape. An act of sexual penetration was alleged, the only aspect missing was the reference to s 3 of the SOA. The court held that the amendment fell within the ambit of s 86 of the CPA. The Supreme Court of Appeal came to a similar conclusion in S v Nedzamba 2013 (2) SACR 333 (SCA) and held that the omission of s 3 of the SOA was not fatal. To hold otherwise would be to elevate form above substance, which would bring the administration of justice into disrepute.

Section 270 CPA

We have already referred to the implications of s 270 of the CPA above. In this regard, s 270 CPA operates as a catch all provision.

The court in S v Amas 1995 (2) SACR 735 (N) correctly held that a conviction on contempt of court was not competent on a charge of contravention of s 1(1) of the General Law Further Amendment Act 93 of 1962, on the strength of s 270 of the CPA, as the essential elements of the latter were absent in the charge sheet.

In S v Van Ieperen 2017 (1) SACR 226 (WCC) Binns-Ward J correctly found that a conviction in terms of s 270 CPA on a charge of crimen iniuria on the primary count of contravening s 5(1) of the SOA is untenable as the primary charge is an offence referred to in s 261 of the CPA.

In S v Kok 2015 (2) SACR 637 (WCC) Henney J confirmed the theft conviction where the accused was originally charged with fraud by employing s 270 CPA. Michael Millar holds a different opinion, justifiably so, as all the essential elements of theft are not included in the elements of fraud (M Miller ‘Is theft a competent verdict on a charge of fraud?’ 2014 (Oct) DR 59). The South Gauteng High Court in S v MM Makhosazane (GJ) (unreported special review Ref 103/16 D 332/15, 28-9-2016) considered a conviction of the supply of a scheduled substance in terms of s 3 of the Drugs and Drug Trafficking Act 140 of 1992 (the DTA) competent to a charge of dealing in drugs in terms of s 5(b) of the DTA. Ephedrine is listed in sch 1 as a scheduled substance and is neither a dangerous, nor an undesirable dependence producing substance. The subject matter of the charge is not a drug, and not listed in the same schedule of the Act. The essential elements of s 3 is, therefore, not included in the original charge. The conclusion on review cannot be reconciled with the decisions in Amas and Van Ieperen.

Discussion of Modimolla

The state informed the court that the accused was charged with ‘negligent loss of a firearm’ (para 4). The accused was at all material times aware of the allegations against him. It is common cause that the accused was erroneously convicted of contravening the repealed s 39(1)(k) of the Act. The second issue is that s 86 of the CPA permits a court to allow an amendment, but only prior to judgment. In this regard, the amendment after the first conviction was therefore irregular. The second ‘conviction’ must as a result suffer the same fate and had to be set aside.

The court concluded that after the conviction the magistrate was functus officio (para 20). The judgment fails to consider the possible application of s 113 of the CPA empowering the magistrate, upon realising the issue at hand, to enter a plea of not guilty. It would then have opened the door for the state to apply for an amendment.

The reviewing court makes the statement that the accused was charged with a statutory offence, which no longer constitutes a crime. The offending act underlying the prosecution is, however, still an offence. Therefore, this is not a matter of nullum crimen sine lege (no crime without a law).

The court further argues that an amendment in terms of s 86 of the CPA would amount to a substitution. In support thereof, it relies on S v Barketts Transport (Edms) Bpk en ’n Ander 1988 (1) SA 157 (A). In the Barketts matter the state sought to amend a charge in terms of s 31(1)(a) of the Road Transportation Act 74 of 1977 (the RTA), the unlawful conveyance of goods, by substituting it with contravening s 31(1)(b) of the RTA (the transportation of goods contrary to the terms of a transportation permit). These are two distinct offences as highlighted in the Mahlangu matter. In the matter at hand, we are dealing with exactly the same offence, only couched in different superseding pieces of legislation. The amendment would not have constituted a substitution. This approach is supported by Mahlangu, Motha and Nedzamba.

Muller J further argues that s 35(3)(l) of the Constitution acknowledges the right to a fair trial, which includes the right not to be convicted for an act that was not an offence under national law at the time it was committed (para 20). However, the offending conduct was indeed a crime at the time when it was committed.

The court failed to consider the operation of s 270 of the CPA. Statutory negligent loss of a firearm is not listed in Chapter 26 of the CPA, and the essential averments for contravention on s 120(8) of the FCA is included in the charge sheet by the court’s own observation (para 10). As a court on review has wide powers in terms of s 304 of the CPA, a different approach was available to the court. The following facts are crucial to the matter:

  • The accused was represented.
  • He tendered a plea of guilty to ‘negligent loss of a firearm’.
  • He consented to the ‘amendment’ and would not have conducted his defence any differently.
  • He would suffer prejudice if the matter were referred for a trial de novo that would yield the same result.

Both s 86 and s 270 of the CPA provide safety nets, but only within the limited parameters of the enabling provisions. The ‘amendment’ in Modimolla falls squarely within the parameters of s 86 of the CPA. The accused would have suffered no prejudice had the court allowed the amendment and convicted him or, in the alternative, if the court convicted him of contravening s 120(8)(b) of the FCA in terms of s 270 of the CPA. In both scenarios, the court would have elevated substance above form in the best interests of the administration of justice.

The pragmatic approach adopted in Mahlangu is to be preferred above the formalistic approach in Modimolla. Whenever an opportunity presents itself to apply s 270 of the CPA, it should be taken in the interest of justice – an opportunity unfortunately missed in Modimolla.


Kowie Schutte BProc H Dip in Tax Law (UJ) LLB LLM (Banking Law) (Unisa) is an Additional Magistrate in Kempton Park. Dr Llewelyn Curlewis BLC LLB LLM LLM (cum laude) (UP) LLM (Unisa) LLD (UP) Advanced Dip in Forensic Accounting Advanced Dip in ADR (cum laude) (AFSA) is a legal practitioner in Pretoria.

This article was first published in De Rebus in 2022 (Aug) DR 10.