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2023
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[2023] ZAFSHC 109
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S v Makubo (R27/2023; Ash 18/20) [2023] ZAFSHC 109 (11 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: R27/2023
Magistrate’s
Ref: Ash 18/20
In
the matter between:
THE
STATE
versus
MAQALENGJOSEPH
MAKUBO ACCUSED
CORAM:
NAIDOO,
J
REVIEW
JUDGMENT BY:
NAIDOO,
J
DELIVERED
ON:
11 April 2023
[1]
This matter was referred to the High Court, on an urgent basis, by
the Regional Magistrate, Bethlehem, in
terms of section 304(4) of the
Criminal Procedure Act 51 of 1977 (CPA). As the recess duty judge, it
was brought before me for
urgent adjudication. The practice in this
Division is that such a matter would normally be adjudicated by two
judges, but if it
is brought on an urgent basis, the duty judge may
adjudicate it on his/her own.
[2]
This matter has its genesis in criminal proceedings conducted by an
Acting Regional Magistrate, in which he
convicted the accused, on 9
October 2020, on a charge of Assault with Intent to do Grievous
Bodily Harm, read with the provisions
section 51(2)b) of the Criminal
Law Amendment Act 105 of 1997 (Minimum Sentences Act) The Acting
Magistrate sentenced the accused,
on 29 October 2020, to six (6)
years’ imprisonment in terms of section 276(1)(i) of the
Criminal Procedure Act 51 of 1977
(the CPA). His acting appointment
has since expired and he is no longer acting as a Regional Court
Magistrate The matter was brought
to the attention of the Regional
Magistrate on 24 March 2022 and he immediately referred it to the
High Court. He asserted that
the sentence imposed on the accused is
in excess of the permissible maximum sentence which can be imposed in
terms of section 276(1)(i)
of the CPA, resulting in a failure of
justice. This court was, consequently, requested to review the matter
in terms of section
304(4) of the CPA.
[3]
Due to the urgency, the Regional Magistrate did not obtain a
transcript of proceedings and merely attached
the original charge
sheet, with attendant annexures. The charge related to the serious
assault on the complainant, an eight year
old boy, who was repeatedly
kicked in the stomach by the accused. The child suffered a perforated
bowel as a result, and had the
undergo surgery to repair the damage.
The accused was legally represented and pleaded guilty to the charge.
A typed statement in
terms of section 212(2) of the CPA is attached
to the papers and as such proceedings go, it seems very likely that
it was read
into the record. The statement was signed by the accused.
[4]
In considering sentence, the Acting Regional Magistrate, found that
substantial and compelling circumstances
existed to justify a
departure from imposing the prescribed minimum sentence of ten (10
years’ imprisonment. As indicated,
the court sentenced the
accused to six years’ imprisonment in terms of section
276(1)(i) of the CPA, read with section 51
(2)(b) of the Minimum
Sentences Act.
[5]
The legal position pertaining to this matter is governed by sections
276(1)(i), read with 276A and 304(4)
of the CPA.
Section 276 (1)(i)
provides as follows:
Subject
to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person
convicted of
an offence, namely—
(i)
imprisonment from which such a person
may be placed under correctional supervision in his discretion by the
Commissioner.
Section
276A, which is titled
“
Imposition
of correctional supervision, and conversion of imprisonment into
correctional supervision”
provides in subsection (2) that:
(1)
Punishment shall, subject to the
provisions of
section 75
of the
Child Justice Act, 2008
, only be
imposed under
section 276(1)
(i)
—
(a)
if the court is of the opinion that the
offence justifies the imposing of imprisonment, with or without the
option of a fine, for
a period not exceeding five years; and
(b)
for a fixed period not exceeding five years.
Section
304(4)
reads thus:
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.
[6]
Without the benefit of a transcript of the relevant court
proceedings, I am unable to say what factors the
Acting Regional
Magistrate took into account in deciding that a sentence in terms of
section 276(1)(i)
was appropriate. However, having made that
decision, it was not competent for the him to have imposed a sentence
of six years’
imprisonment, contrary to the provisions of
section 276A(2)
, which stipulates that a sentence in terms of
section
276(1)(i)
shall be for a fixed period not exceeding five years.
It
is, therefore, my view that, for the reasons set out above, the court
a quo
misdirected itself in imposing a sentence of six years’
imprisonment on the accused, warranting the interference of this
court in order to ensure that the interests of justice are served.
[7]
In the circumstances, the following order is made:
7.1
The sentence imposed in this matter by the Regional Court, which
reads:
“
On a charge of
assault with intent to do grievous bodily harm, read with the
provisions of
section 51(2)(b)
of Act 105 of 1997 as amended, the
accused is sentenced to imprisonment for a period of 6 (Six)) years’
in terms of the provisions
of section 276(1)(i) of Act 51 of 1977
”,
is set aside.
7.2
The following sentence is substituted for that which was imposed by
the Regional Court :
“
On a charge of
assault with intent to do grievous bodily harm, read with the
provisions of section 51(2)(b) of Act 105 of 1997 as
amended, the
accused is sentenced to imprisonment for a period of Five (5) years’
in terms of the provisions of section 276(1)(i)
of Act 51 of 1977.”
7.3
In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the
sentence referred to in paragraph 6.2 is antedated to 29 October 2020
S
NAIDOO J