About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 18
|
|
Keyser v District Court Magistrate (Kroonstad), Nomzaza N.O and Another (2164/2022) [2023] ZAFSHC 18 (31 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2164/2022
Reportable:
NO
Of interest to other
Judges: NO
Circulate to Magistrates:
YES
In
the matter between:
FREDERIK
WILHELM KEYSER
Applicant
and
THE
DISTRICT COURT MAGISTRATE
1
st
Respondent
(KROONSTAD),
Z. NOMZAZA N.O
DIRECTOR
OF PUBLIC PROSECUTION,
2
nd
Respondent
HEARD
ON:
30 JANUARY 2023
JUDGMENT
BY
:
MHLAMBI, J
CORAM:
MHLAMBI, J
et
LOUBSER
, J
DELIVERED
ON:
31 JANUARY 2023
REASONS
[1] On 30 January 2023 I
granted an order as follows:
“
1.
The conviction and sentences of the applicant under case A472/2018 in
the magistrates’ court for the district of Kroonstad
are
reviewed and set aside.
2.
No order as to costs.”
[2]
I stated that the reasons for the granting of the order would follow.
[3]
The applicant was convicted in the magistrate’s court for the
district of Kroonstad of the crime of assault with the intent
to do
grievous bodily harm. He was sentenced to six months’
imprisonment which was wholly suspended for a period of three
years
on condition that he was not convicted of assault within the period
of suspension. He approached this court with an application
to review
and set aside both the conviction and sentence.
[4]
The first respondent filed a notice to abide by the decision of the
court. The second respondent was joined as a respondent
to the review
application but chose not to oppose the application. The application
is therefore unopposed.
[5]
The main ground on which the review is based is that the district
court did not have the requisite punitive jurisdiction to
hear the
matter as the prescribed minimum sentence exceeded the limits of the
district court’s punitive jurisdiction. The
offence with which
the applicant was charged attracted a minimum sentence in terms of
section 51(2)(b) read with Schedule 2 Part
III of the
Criminal Law
Amendment Act 105 of 1997
.
[6]
Section 51(2)(b)
of the Act provides that:
“
51
Discretionary
minimum sentences for certain serious offences
(1)
…
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a regional court or a High Court shall sentence a person
who has been
convicted of an offence referred to in-
(a)….
(b)
Part III
of Schedule 2, in the case of-
(i)
a first offender, to imprisonment
for a period not less than 10 years;
(ii)
a second offender of any such
offence, to imprisonment for a period not less than 15 years; and
(iii)
a third or subsequent offender of
any such offence, to imprisonment for a period not less than 20
years;”
[7]
Part III
of Schedule 2 provides that:
“
Assault
with intent to do grievous bodily harm on a child under the age of 16
years.
Assault
with intent to do grievous bodily harm-
(a)
on a
child-
(i)
under
the age of 16 years; or
(ii)
…”
[8]
It is clear from the the evidence on record that the victim of the
assault, K[…] K[…], is the applicant’s
daughter
who was nine years old at the time of the assault. The Minimum
Sentences Legislation prescribes that only a regional court
or a High
Court shall sentence a person who has been convicted of an offence
referred to in
section 51(2)(b)
read with
Part III
of Schedule 2 of
Act 105 of 1997. The district court did not have the punitive
jurisdiction to adjudicate the matter. Consequently,
the proceedings
were reviewable in terms of section 22(1)(a) of Act 10 of 2013 and
the conviction and sentence stood to be reviewed
and set aside.
[9]
These are the reasons.
MHLAMBI, J
I concur
LOUBSER,
J
On
behalf of the applicant: Adv. HJ van der Merwe.
Instructed
by:
Phatsoane Henney Inc.
36
Markgraaff Street
Westdene
Bloemfontein
On
behalf of the respondents: No appearance.