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2023
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[2023] ZAFSHC 148
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S v Masenyetsa and Others (R06/2023) [2023] ZAFSHC 148 (5 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
R06/2023
In
the matter between
:
THE STATE
and
TUKISO
MASENYETSA
accused
1
TEFO
RAMARUMO
accused
2
KGOTSFALANG
MAKESI
accused
3
TANKI
TSEPO
accused
4
CORAM
:
RAMDEYAL AJ et CHESIWE, J
REVIEW
JUDGMENT BY
:
RAMDEYAL AJ
DELIVERED
ON
:
5 MAY 2023
[1]
The Senior Magistrate, Welkom, sent this matter on
Special Review in terms of s 304 (4) of the Criminal Procedure
Act
[1]
,
hereinafter referred to as the “Act”. He contended that
the trial magistrate committed serious irregularities. The
accused
were convicted and sentenced as follows:
COUNT
1:
Accused 1, 2 and 3: Contravening s
36 of the General Law Amendment Act, Act 62 of 1955 (Possession of
Suspected Stolen Property).
Each accused
was sentenced to Four (4) years imprisonment.
COUNT
2:
Accused 1, 2, 3 and 4: Contravention
of s 49(1)(a) of the Immigration Act 13 of 2002 (Illegal Foreigners)
.
Each accused was sentenced to Eighteen (18) months imprisonment. The
sentences in respect of both counts were ordered to run concurrently.
[2]
The Senior Magistrate pointed out that in respect of Count 1 the
magistrate exceeded the penal jurisdiction
of the magistrate’s
court which is three (3) years’ imprisonment by sentencing each
of the accused to a term of four
(4) years’ imprisonment and
therefore committed an irregularity.
[3]
Additionally, he submitted that in respect of Count 2 the accused
were convicted in terms of a guilty
plea which should
have been dealt with in terms of s 112 (2) of the Act. Only accused 1
confirmed the correctness of his
statement and not the other accused
and therefore a further irregularity was committed.
[4]
This case was disposed of by an acting magistrate whose judicial
contract had been terminated and therefore
no comments were received
from the magistrate.
[5] At
this stage I wish to point out that only accused 1, 2 and 3 were
convicted in respect of count 1. The
J4 form for accused 4 is
therefore incorrect. Accused 4 was acquitted on count 1.
COUNT 1
[6]
Section 304(4) of the Act reads 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 s 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 according
to 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.”
[7]
Upon reading the record of the proceedings accused 1,2 and 3 were
correctly convicted in respect of
count 1. The sentence
however, is clearly an irregularity as s 92 (1) (a) of the
Magistrate’s Court Act
[2]
reads as follows:
“
Save
as otherwise in this Act or in any other law specially provided, the
court, whenever it may punish a person for an offence-by
imprisonment, may impose a sentence of imprisonment for a period not
exceeding three years, where the court is not the court of
a regional
division, or not exceeding 15 years where the court is a court of a
regional division…”
[8]
Section 36 of the General Law Amendment Act 62 of 1955 reads as
follows:
“
Failure
to give a satisfactory account of possession of goods
Any
person who is found in possession of any goods, other than stock or
produce as defined in section
one
of
the Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there
is reasonable suspicion that they have been stolen and is
unable to
give a satisfactory account of such possession, shall be guilty of an
offence and liable on conviction to the penalties
which may be
imposed on a conviction of theft.”
[9] The
magistrate’s sentence for theft, a common law crime, may not
exceed 3 years’ imprisonment.
The accused are currently serving
a custodial sentence and will be prejudiced if the sentence is not
corrected immediately as the
sentence imposed exceeds the
jurisdictional limit of three (3) years. The sentence imposed is not
in accordance with justice and
should be corrected.
COUNT 2
[10] The
concern raised by the senior magistrate is that the magistrate did
not follow the prescribed procedure for
a plea of guilty. It is
common practice
that when a guilty plea is tendered by an
accused who is legally represented the legal representative hands in
a written statement
on behalf of the accused signed by the legal
representative and the accused, with admissions relating to the
elements of the offence
and the facts and are generally read out into
the record for each accused. The procedure followed emanates from s
112(2) of the
Act. Section 112(2) of the Act reads as follows:
“
If
an accused or his legal advisor hands in a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may in lieu of
questioning the accused under subsection (1) (b) ,
convict
the accused on the strength of such statement
and
sentence him as provided in the said subsection if the court is
satisfied that the accused is guilty of the offence to which
he has
pleaded guilty: Provided that the court may in its discretion put any
question to the accused in order to clarify any matter
raised in the
statement.”
[11] In this
case only the statement of accused 1 was read into the record and
confirmed by the accused. The statements
of accused 2, 3 and 4 were
not read into the record, apparently because the contents were the
same for all the accused. The statements
were then handed in, in
respect of all 4 accused and marked as exhibits A, B, C and D
respectively. Upon further perusal of the
proceedings it appears that
the magistrate asked all the accused about their respective
statements. The record reads:
“
Do
you understand the content of your statement, your plea explanation?
Accused 1: Yes your
worship
Court: All of, all of
you?
Accused: Yes your
worship”
[12] The
magistrate then confirmed with the accused the admissions they made
and informed them that no further evidence
will be led in respect of
those admissions. In the judgment the magistrate referred to the
guilty plea in respect of count 2 and
admissions recorded in terms of
s 220 of the Act.
[13] Indeed
the relevant s 112 (2) did not appear on the statements perhaps from
an oversight or inexperience of the
legal representative. The
magistrate too did not clear this important aspect with the legal
representative. The procedure followed
clearly reflects that the
magistrate erred in his application of the relevant section and
therefore an irregularity is evident.
The magistrate then decided to
treat the admissions as admissions made in terms of s 220 of the Act.
Admissions made in terms of
s 220 of the Act may be made by an
accused or this legal adviser in criminal proceedings where any fact
placed in issue may be
admitted and maybe sufficient proof of that
fact. Hence no evidence was led in that respect and the accused were
convicted on their
admissions as reflected in Exhibits A, B, C and D.
[14]
The main aspect for consideration in this review is whether a
gross irregularity was committed which has the effect
that the
convictions should be set aside. Generally, s 304(4) is used by
senior magistrates to send cases on review where they
are of the view
that conviction or sentence should be corrected or set aside.
[3]
The test is not whether the proceedings are technically sound but
whether the practical effect was just; if it is not just then
the
reviewing court must intervene.
[4]
[15] In fact the
irregularities which I have highlighted in the preceding paragraphs
are of a procedural nature. The accused
were legally represented at
all times, the statements were signed by the accused, the accused
admitted all the elements of the
offence as contained in their plea
explanation and they did so voluntarily, in their sound and sober
senses and without any undue
influence.
[16] I am
therefore satisfied, that in spite the procedural irregularities, the
practical effect of the conviction in
respect of all the accused is
just and will not be in the interests of justice to set it aside as
it could have adverse consequences
if illegal persons in the country
are released because of procedural irregularities; whereas in fact
they have correctly pleaded
guilty.
[17] Their right
to a fair criminal trial was therefore not infringed.
[18] In the
circumstances, I make the following order:
1.
In respect of
COUNT
1
:
a.
The convictions of accused 1, 2 and 3 are
confirmed and their respective sentences are set aside and replaced
with sentences of
three (3) years’ imprisonment in respect of
each accused.
2.
In respect of
COUNT
2
:
b.
The convictions and sentences in respect of
accused 1, 2, 3 and 4 are confirmed.
3.
The order in terms of s 280 (2) of the Act
to the effect that both sentences, in respect of accused 1, 2 and 3
are to run concurrently
is confirmed.
4.
The sentences are ante dated to 4 January
2023
___________________
RAMDEYAL,
AJ
I
concur:
________________
S.
CHESIWE, J
[1]
51
of 1977
[2]
32
of 1944.
[3]
S
v Hoema
1978
(2) SA 704 (T).
[4]
S
v Mahlangu
2000
(2) SACR 210
(T) at 211E.