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2024
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[2024] ZAGPJHC 50
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S v Kobe (B180/23) [2024] ZAGPJHC 50 (26 January 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: B180/23
MAGISTRATE’S
SERIAL NO: 7/23
HIGH COURT REF NO:
50/23
In the matter between:
THE
STATE
and
KOBE,
WILLIAM
ACCUSED
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by e-mail and to saflii. The
date and
time for hand down is deemed to be 10h00 on 26 January 2024.
Criminal
procedure- special review- sentence by a district magistrate set
aside-
the
proceedings are stopped, and the accused is committed for sentence by
a regional court having jurisdiction.
REVIEW JUDGMENT
MUDAU, J (Ismail J
concurring):
[1]
The matter has been placed before me for special
review in terms of section 304 (4) of the Criminal Procedure Act, 51
of 1977 (the
CPA), at the instance of the trial magistrate,
Westonaria. Section 304(4) of the CPA provides as follows
—
“
If
in any criminal case in which a magistrate’s court has imposed
a sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge in terms of section 303 or this section.”
[2]
The
relevant background facts are as follows. On 20 July 2023, the
accused who was duly represented by an attorney,
appeared before the
magistrate on a charge of assault with the intent to do grievous
bodily harm read with section 51 (2) and Part
3 of scheduled 2 of the
Criminal Law Amendment Act 105 of 1997
as amended, read with the
provisions of
section 256
and
266
of the CPA, read together with
section 1
of the
Domestic Violence Act 116 of 1998
as amended and
section 103
of the
Firearms Control Act of 2000
as amended. The
accused pleaded guilty to the charge.
[3]
A
statement in terms of
section 112(2)
of the CPA in support of the
plea of guilty was tendered. The accused was subsequently convicted
as charged in respect of the charge.
That was after the state had
indicated their acceptance of the facts upon which the accused had
pleaded.
[4]
The
state also led the evidence of the complainant before sentence, which
was unchallenged. In summary, the two were in a domestic
relationship. The complainant had because of the assault sustained a
small wound on the head, which however did not require any
medical
intervention. At the time of her testimony, the wound had healed. All
that remained was a small scar. After considering
the mitigating and
aggravating factors, the accused was sentenced to serve a term of 18
months’ imprisonment without an option
of a fine, which was
however suspended for five years on customary conditions. In
addition, the accused was declared unfit to possess
a firearm in
terms of
section 103
(2) of the
Firearms Control Act 60 of 2000
.
[5]
The
matter was referred to this court upon special review in one respect
only. That the learned magistrate erred in sentencing the
accused as
her jurisdiction was ousted by the amendment of
Part 3
off schedule 2
of the
Criminal Law Amendment Act 105 of 1997
which since is
operation,
[1]
included a victim
that is or was in a domestic relationship as defined in
Section 1
of
The
Domestic Violence Act. The
import thereof meant that the accused
was eligible to be sentenced in terms of
section 51(2)
of the
Criminal Law Amendment 105 Of 1997 to 10 years imprisonment in the
absence of a finding of compelling reasons justifying
departure from
the mandatory sentencing regime. I agree with the magistrate. The
ordinary penal jurisdiction of a district court
magistrate is a
maximum of three years imprisonment
[2]
.
[6]
Section
304
(4) of the CPA is generally invoked by a magistrate when the
correctness of a conviction or sentence is in doubt, but the
magistrate
is functus officio about its correction
[3]
.
The powers of this court on review are those referred to in
section
304
(2) (c) (i-vi) of the CPA subject to the provisions of
section
312
thereof regarding the remittal of the case to the court a quo.
Significantly, this court has inherent power of review as extended
by
section 173 of the Constitution. The powers to intervene on review
exist in circumstances where the proceedings are not in accordance
with justice.
[7]
In
this case, the conviction of the accused by the magistrate cannot be
faulted. Section 114 (1) of the CPA is clear that “If
a
magistrate’s court, after conviction following on a plea of
guilty but before sentence, is of the opinion—
“…
.
(c) that the offence in
respect of which the accused has been convicted is of such a nature
or magnitude that it merits punishment
in excess of the jurisdiction
of a magistrate’s court; the court shall stop the proceedings
and commit the accused for sentence
by a regional court having
jurisdiction”.
[8]
Accordingly,
it follows that there is no need to interfere with the conviction,
but the sentence imposed by the magistrate.
[9]
Order
a.
The
conviction stands.
b.
The
sentence imposed by the magistrate is reviewed and set aside and, in
its place, replaced with the following order: “the
proceedings
are stopped, and the accused is committed for sentence by a regional
court having jurisdiction”.
________________
MUDAU
J
[Judge of the High
Court,
Gauteng Local
Division,
Johannesburg]
I agree
________________
Ismail J
[Judge of the High
Court,
Gauteng Local
Division,
Johannesburg]
[1]
Section17
(b)
of
Act 12 of 2021 (w.e.f. 5 August 2022).
[2]
S92(1)
Magistrates’ Courts Act 32 of 1944
.
[3]
S
v Khubekha
1999
(1) SACR 65
(W).