About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2020
>>
[2020] ZAWCHC 81
|
|
S v Josephs (1059/2019) [2020] ZAWCHC 81; 2021 (1) SACR 450 (WCC) (19 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
(Coram:
Binns-Ward, J
et
Henney, J)
High
Court Ref No: 269/20
Magistrate’s
Serial No: 06/2020
Case
No: 1059/2019
In
the matter between:
THE
STATE
vs
CHRISTIAAN
JOSEPHS
JUDGMENT:
19 AUGUST 2020
HENNEY,
J:
[1]
This matter was sent on automatic review by the
magistrate at Bredasdorp, purportedly in terms of the provisions of
section 302(1)
of the Criminal Procedure Act 51 of 1977 (“the
CPA”). The accused, who was not legally represented, had
been
correctly convicted on two counts of contravening section 37 of
the General Law Amendment Act 62 of 1955, and one count of
housebreaking
with the intent to steal and theft.
[2]
All three charges were taken together for
sentence, and a sentence of two years’ correctional supervision
was passed upon
the accused in terms of section 276(1)(h) of the CPA,
subject to the usual conditions, such as house detention, community
service,
and attendance at substance abuse, anger management, and
life skills programmes.
[3]
I queried why the magistrate had sent the matter
on automatic review because it seemed to me that the sentence that
had been imposed
did not render the case subject to such review.
[4]
The magistrate replied as follows: “
The
accused being unrepresented were sentenced in terms of the provisions
of Section 276(1)(h) of Act 51 of 1977 to a term of correctional
supervision. Due to the term imposed exceeding the limit as set
out in Section 302(1) of the CPA 51/1977 I was of the opinion
that
the case be sent on review. I was further reminded by the
learned author of Hiemstra’s Criminal Procedure at 30-17
that
‘If the sentence exceeds the limit, it is reviewable.’”
[5]
The reply made it evident that the magistrate was
not aware of the fact that the sentence of correctional supervision
imposed in
terms of section 276(1)(h) of the CPA is
not
subject to review in terms of section 302 of the CPA. In the
circumstances I could have merely returned the matter with a
note.
On reflection, however, I decided that it might be helpful to clarify
the position in a judgment that might be instructive
and helpful to
magistrates generally.
[6]
The
procedure of automatic review has been part of our legal system for
over a hundred years. Whilst it is not clear how the
procedure
originated, it has been said that the first reference to it was in
sections 47 and 48 of Act No. 20 of 1856 (Cape Colony),
which
provided that in any case in which a magistrate sentenced a person
upon conviction to imprisonment for a period exceeding
one month, or
to a fine exceeding £5, or to receive lashes, he was required
to send the record by the next available post
to the registrar of the
Supreme Court. The proceedings were then laid before a judge
and, if he found them to be in accordance
with real and substantial
justice, he issued a certificate to that effect, thereby confirming
the proceedings.
[1]
A
summary of the history of the various legislative provisions dealing
with automatic reviews in South Africa prior to the
enactment of
section 302 of the CPA is also to be found in
S
v Mafikokoane;
S v
Mokhuane
1991
(1) SACR 597
(O), from page 599.
[7]
Section 276(1)(h) of the CPA provides for
correctional supervision as one of the punishments which a sentencing
court can impose
on a convicted person. The imposition of the
punishment is permitted subject to the other provisions of the CPA
and any other
law, and of the common law. Sections 276 (1)(b),
(c), (d), (e) and (j) by contrast are all custodial punishments.
With
the exception of s 276(1)(e), which relates to ‘committal
to any institution established by law’, they all involve
imprisonment
.
[8]
“
Correctional supervision”
is defined in section 1 of the CPA as “
a
community based sentence
to which a
person is subject in accordance with Chapter V and VI of the
Correctional Service Act, 1998, and the regulations made
under that
Act …
” (own underlining).
The term is defined in
Correctional Services Act 111 of 1998
as
meaning “
compulsory work for a community
organisation or other compulsory work of value to the community,
performed without payment
”. A
person sentenced to correctional supervision in terms of
s 276(1)(h)
is a person subject to “community corrections” within the
meaning of that term in the
Correctional Services Act; see
section 51(1)(a) of the Act. The objectives of “community
corrections” are set out in
section 50
of the
Correctional
Services Act. Section
50(1)(a) of the Act provides: “
The
objectives of community corrections are-(i) to afford sentenced
offenders an opportunity to serve their
sentences
in a
non-custodial manner
”
(own
underlining). The conditions of correctional supervision may
include ‘house detention’ (section 52(1)(a)),
which means
that the sentenced person is restricted to his dwelling for a
stipulated period on a daily basis (section 59), but
that is not
imprisonment or detention in custody even if it has been acknowledged
in some judgments as having a similar effect
to incarceration.
[9]
Section 302(1)(a) of
the CPA provides:
Any sentence imposed
by a magistrate's court-
(i)
which, in the
case of imprisonment (including detention in a child and youth care
centre providing a programme contemplated in section
191 (2)(j) of
the Children's Act, 2005 (Act 38 of 2005)), exceeds a period of three
months, if imposed by a judicial officer who
has not held the
substantive rank of magistrate or higher for a period of seven years,
or which exceeds a period of six months,
if imposed by a judicial
officer who has held the substantive rank of magistrate or higher for
a period of seven years or longer;
(ii)
which,
in the case of a fine, exceeds the amount
17
determined
by the Minister from time to time by notice in the Gazette for
the respective judicial officers referred
to in subparagraph (i),
shall be subject in
the ordinary course to review by a judge of the provincial or local
division having jurisdiction.
Subsection (3) makes the
provisions of s 302(1) applicable only with reference to a
sentence imposed on an accused person who
was not assisted by a legal
adviser.
[10]
It
is apparent from the statutory provisions to which I have referred
that correctional supervision is not a sentence of imprisonment.
It is a non-custodial sentence which is imposed upon an accused
person under strict conditions, such as
house
arrest, community service, rehabilitation and compulsory attendance
of programs in relation, inter alia, to combatting drug
and alcohol
abuse. In
S
v R
1993
(1) SACR 209
(A), Kriegler AJA held in relation to the provision of
correctional supervision as a sentencing option that the legislature
has
clearly distinguished between two types of offenders, viz, those
who ought to be removed from society by means of
imprisonment,
and those, although deserving of punishment, that should not be so
removed from society. See also
S
v Grobler
2015
(2) SACR 210
(SCA). This is clearly what the magistrate had in
mind when he then imposed a sentence of correctional supervision when
he
said the following during the sentencing proceedings: “
Die
beamptes is van mening dat u ‘n kans moet gegun moet word; dat
u liewer u vonnis buite in die gemeenskap moet uitdien,
as wat u in
die tronk in is.”
[2]
He
further stated: “
Die
oorweging van korrektiewe toesig – baie keer dan is die idee,
maar dit is nie so ‘n ernstige straf nie. Maar
om iemand
te beperk tot sy huis en vir hom te sê jy mag net sekere plekke
na
toe
gaan, sekere tye mag jy na toe gaan (sic), word geag dieselfde effek
te hê as wat ‘n person in die tronk is.”
[3]
[11]
The sentence imposed by the magistrate was
therefore not one that was subject to review in terms of the
provisions of section 302(1)
of the CPA.
[12]
The matter is therefore remitted back to the
Magistrate’s Court, Bredasdorp, for the attention of the
magistrate, whereafter
it is still to be dealt with by the clerk of
the court for further filing thereof. The Registrar of this
court is furthermore,
directed to submit a copy of this judgment to
the Chief Executive Officer of the South African Judicial Education
Institute, for
distribution thereof to magistrates.
_____________________
R.C.A. HENNEY
Judge
of the High Court
I agree.
____________________
A.G. BINNS-WARD
Judge
of the High Court
[4]
[1]
SALJ Vol 79 (1962) at 267, where a memorandum submitted by two
judges of the then Transvaal Provincial Division to De Wet JP
is reproduced with the permission of the Judge President and authors
under the title: “
On
The System of Automatic Review and The Punishment of Crime.”
[2]
Loosely translated: “
The
officials are of the view that you should be given a chance, that
you should rather serve a non-custodial sentence in the
community
than go to prison.”
[3]
“Again,
loosely translated: “
The
consideration of correctional supervision for many would not be such
a serious punishment. But to restrict someone to
his house and
to order that he may only go to certain places at certain times, may
have the same effect of a person being incarcerated.”
[4]