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[2010] ZAGPJHC 94
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S v Khoza (61/0960/2009) [2010] ZAGPJHC 94; 2011 (1) SACR 482 (GSJ) (20 October 2010)
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REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT (JOHANNESBURG)
High Court Ref No: 131/2010
Magistrate’s Court Ref No:
22/2010
Case Number:
61/0960/2009
DATE:
20/10/2010
In the matter between:
THE STATE
And
NOSIPHO
PRECIOUS KHOZA
..................................................
The
Accused
_______________________________________________________________
REVIEW JUDGMENT
_______________________________________________________________
C. J.
CLAASSEN J
:
The accused was arraigned in
the Magistrate’s Court for the district of Johannesburg on a
charge of theft before magistrate
Ms A. Africa. According to the
charge sheet the accused stole R35 000.00 in cash from her employer.
The accused, who was
represented by Mr Retief, pleaded not guilty to the abovementioned
charge on 8 December 2009, whereafter
the trial commenced with the
evidence of the complainant. The matter was later postponed to 25
January 2010 for further evidence
by the complainant.
On 25 January 2010 the accused
made formal admissions in terms of section 220 of the Criminal
Procedure Act 51 of 1977 (hereinafter
referred to as “the
Act”), whereafter the State closed its case without leading
further evidence. The Court then
proceeded to convict the accused as
charged, on the basis of the admissions made by the accused in terms
of section 220 of the
Act.
The accused was thereafter
sentenced to a fine of R10 000.00 or 36 months’ imprisonment
which the Court suspended for a
period of five years on condition
that the accused is not convicted of theft or attempted theft,
committed during the period
of suspension. The Court further made a
compensation order in terms of section 300 of the Act, ordering the
accused to pay the
amount of R20 000.00 as follows:
“
a)
The
amount of
R2000.00
(two thousand) is payable today (
25/1/2010
).
b)
The
balance is payable in instalments of
R500.00
(five hundred) at the
end
of each month
,
until the balance is paid in full.
c) The next payment of R500
(five hundred) is due at the end of February 2010.”
It further
appears that an agreement was reached between the prosecutor and
defence counsel that an amount of R2000.00 would be
payable
immediately and an amount of R500.00 would be payable monthly
thereafter until a total of R20 000.00 was paid. The agreement
would
therefore not compensate the complainant in full as the damage
suffered by the complainant was for an amount of R35 000.00.
The
complainant was, however, never called to testify whether or not
this agreement was acceptable and whether she was prepared
to accept
an amount less than her actual damages.
1
The matter
was thereafter referred on Special Review by the learned Senior
Magistrate, N Jadezweni, as the accused did not comply
with the
compensation order, in that she only paid an amount of R2000.00 on
25 January 2010. The learned senior magistrate argues
that the
compensation order was inappropriate as it was not made a condition
of the suspended sentence
2
and that the trial magistrate did not follow the “correct
procedure”. It was requested that the sentence should be
replaced with an appropriate and competent sentence.
This matter
came before me, and I referred the matter for comment to the
Director of Public Prosecutions on the following:
“
1. Was the procedure
followed by the Magistrate unlawful?
If so, what would have been
the correct procedure?
What is the proper remedy to
rectify the situation?”
The office of the Director of
Public Prosecutions has submitted a helpful report for which I
express my gratitude.
There are two ways in which a
Court can provide compensation to a complainant who suffered a loss
or damage to property, due to
the actions of an accused in a
criminal matter:
The Court
may make a compensation order as part of the suspensive conditions
to a sentence in terms of section 297 of the Act
3
,
or
The Court
may make a compensation order in terms of section 300 of the Act,
which order has the effect of a civil judgment.
4
Both methods are discretionary
and depend on the conviction of an accused for an offence that caused
damage.
An order in
terms of section 300 of the Act would only be appropriate where the
accused has sufficient money or executable assets
to compensate the
complainant in full or to a large extent. Where an accused is unable
to compensate the complainant in full,
an order in terms of this
section should not be made. If an accused is employed and able to
repay in instalments, it would be
more appropriate and practical to
impose a sentence suspended on condition of periodical repayments.
5
Compensation
as a condition of a suspended sentence is too often not considered.
A condition of suspension is more flexible as
it can be judicially
adapted in the case of failure to pay without the complainant having
to incur the costs and bother of execution.
Therefore courts should
rather make use of section 297 opportunities to impose compensation
as a suspensive condition of the
sentence.
6
In
casu
it appears from the record that the prosecutor received instructions
from the complainant to request the Court to make a compensatory
order against the accused in terms of section 300 of the Act.
7
It appears
from the record that the accused was unemployed as she had lost her
employment due to the fact that she had committed
the offence
against the complainant, who was her employer. It further appears
from the prosecutor’s address in aggravation
of sentence that
there was a possibility of the accused being re-employed by the
complainant, in order for her to be able to
comply with a
compensation order. As the complainant was never called to testify
during the sentencing phase of the trial, the
issue of the possible
re-employment of the accused was never confirmed. Thus, there is no
evidence to indicate whether or not
the accused would have been able
to afford it to comply with the compensation order under
consideration, especially in light
of her being unemployed with only
a vague possibility of being re-employed by the complainant.
8
Although the learned magistrate
was entitled to make a compensation order in terms of section 300 of
the Act, more could, and
should, have been done to establish:
Whether or not the accused
would be able to comply with such an order in light of her
unemployment;
Whether or not the complainant
was prepared to accept an amount in compensation that would be
substantially less than her actual
loss or damage;
Whether or not there was a real
possibility of the complainant re-employing the accused in order for
her to comply with the compensation
order.
The
proceedings
in
casu
were not in accordance with justice and the sentence imposed and the
compensation order in terms of section 300 of the Act should
be set
aside. The following order is made:
The conviction is confirmed.
The sentence is set aside
including the compensation order issued in terms of
section 300
of
the
Criminal Procedure Act 51 of 1977
.
The matter is referred back to
the magistrate who convicted the accused to sentence her afresh.
The magistrate is to conduct a
proper enquiry as to whether
section 297
or
section 300
of the
Criminal Procedure Act 51 of 1977
is most suitable for purposes of a
compensation order in this case, taking into consideration the
matters referred to in paragraph
[12] above.
DATED THE ________ DAY OF
________________ 2010 AT JOHANNESBURG
_______________________
C. J. CLAASSEN
JUDGE OF THE HIGH COURT
I agree
___________________________
R. MOKGOATLHENG
JUDGE OF THE HIGH COURT
1
See Record p 24 lines 9 – 19 and p 26 lines
20 – 24.
2
The court may not lay down a date before which compensation should
be paid, unless it is a condition of suspension. See
State v
Nyati
1978 (4) SA 26
(T) at 27C – E
3
Section 297(1)(a)(i)(aa)
of the
Criminal
Procedure Act 51 of 1977
which reads as follows:
“
297 Conditional or unconditional
postponement or suspension of sentence, and caution or reprimand
Where
a court convicts a person of any offence, other than an offence in
respect of which any law prescribes a minimum punishment,
the court
may in its discretion –
(a) postpone for a period not exceeding five years the passing of
sentence and release the person concerned –
(i) on one or more conditions, whether as to –
(aa) compensation;”
4
Section 300
of the
Criminal Procedure Act 51 of
1977
reads as follows:
“
300 Court may award compensation where
offence causes damage to or loss of property
Where
a person is convicted by a superior court, a regional court or a
magistrate’s court of an offence which has caused
damage to
or loss of property (including money) belonging to some other
person, the court in question may, upon the application
of the
injured person or of the prosecutor acting on the instructions of
the injured person, forthwith award the injured person
compensation
for such damage or loss: Provided that –
a
regional court or a magistrate’s court shall not make any
such award if the compensation applied for exceeds the amount
determined from time to time by the Minister by notice in the
Gazette in respect of the respective counts.
…
For
the purposes of determining the amount of the compensation or the
liability of the convicted person therefor, the court
may refer to
the evidence and the proceedings at the trial or hear further
evidence either upon affidavit or orally.
(a) An
award made under this section –
by a
magistrate’s court, shall have the effect of a civil judgment
of that court;
by a
regional court, shall have the effect of a civil judgment of the
magistrate’s court of the district in which the
relevant
trial took place.
…”
5
See
State v Baloyi
1981 (2) SA 227
(T) at 229E – H
6
See Terblanche, “Guide to Sentencing in
South Africa” Second Edition, p 405
7
See Record p 24 lines 6 – 13
8
See Record p 24 lines 22 – 24 and p 27
lines 1 – 7