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[2022] ZAFSHC 166
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S v Makutoane and Others (01/2020) [2022] ZAFSHC 166; 2022 (2) SACR 589 (FB) (1 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.
:
01/2022
Reportable:
Yes/No
Of
Interest to other Judges Circulate to Magistrates: Yes/NO
Circulate
to Magistrates: Yes/No
In
the matter between:
THE
STATE
versus
MOHAU
MAKUTOANE
MOTLATSI
RAMAOTO
LERATO
MAKUTOANE
TELLO
MAKUTOANE
CORAM:
I VAN RHYN,
Jet
N. SNELLENBURG,
AJ
JUDGMENT
BY:
N
SNELLENBURG
AJ
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and release to SAFLII. The
date
and time for hand-down is deemed to be 1 July 2022 at 14:00.
[1]
This matter was sent for special review
in terms of
section 304(4)
of the
Criminal Procedure Act, 51 of 1977
,
as amended ("the Act"), by the Senior Magistrate for the
district of Welkom.
[2]
The 4 accused persons were charged with
the following offences:
2.1
Count 1: Contravening
Section 4(3)
(read
with Section 1 and 20(1)(a)) of the Precious Metals Act, Act 37 of
2005 in that upon or about 22 September 2021 at or near
Welkom in the
district of Welkom the accused did unlawfully and intentionally
possess an unwrought precious metal to wit 0,0015
grams of fine gold
to the value of R309,50 without him being authorized thereto in terms
of the provisions of the abovementioned
Act; and-
2.2
Count 2: Contravening
Section 49(1)(a) (read with sections 1,
10, 25 and 26) of the Immigrations Act 13 of 2002 [as amended by sec
24 of Act 13/2011]
in that upon or about 22 September 2021 and or
near Welkom in the district of Welkom the accused entered or remained
in the Republic
of South Africa in contravention of the Immigrations
Act by remaining in the Republic of South Africa without a valid
permit, passport
or travel document.
[3]
The accused persons were legally
represented and pleaded guilty to the aforesaid charges. Statements
were prepared and handed in
on behalf of each accused person in terms
of Section 112(2) of the Act.
[4]
The State accepted the guilty pleas, and
the accused persons were subsequently convicted and sentenced as
follows:
'Count
1: Accused 1 - 4 each Fined R 3000 {Three Thousand) or 60
{Sixty)
days imprisonment.
Count
2: Accused 1 - 4 each Fined R 1000 {One Thousand) or 30
{Thirty)
days imprisonment. In terms of
section 280(2)
of the
Criminal
Procedure Act, Act
51 of 1977 the court orders the sentences imposed
in count 1 and 2 shall be served concurrently.
In
terms of
section 35
of Act 51 of 1977 gold bearing material is
declared forfeited to the State.'
[5]
In the referral letter the Senior
Magistrate records that it was confirmed that none of the accused
persons could pay the fines
and they thus served the imprisonment
term.
[6]
The Senior Magistrate requests
consideration on special review by virtue thereof that:
6.1
It was incompetent for the court to
order that a sentence consisting of a fine with alternative
imprisonment should run concurrently
with another sentence.
6.2
The relevant gold bearing material was
not seized in terms of the provisions of the
Criminal Procedure Act.
The
order should therefore be made in terms of
section 21(1)(b)
of
the
Precious Metals Act 37 of 2005
[The
Precious Metals Act].
[7
]
Section 280(1) and (2) of the Act
provides as follows with regards to cumulative or concurrent
sentences:
'(1)
When a person is at any trial convicted of two or more offences or
when a person under sentence or undergoing sentence is convicted
of
another offence, the court may sentence him to such several
punishments for such offences or, as the case may be, to the
punishment
for such other offence, as the court is competent to
impose.
(2)
Such punishments, when consisting of imprisonment, shall commence the
one after the expiration, setting aside or remission of
the other, in
such order as the court may direct, unless the court directs that
such sentences of imprisonment shall run concurrently.'
[8]
With
reference
to
section 280(2)
of
the Act, Du Plessis J held in
S
v Manganyi
[1]
that
it
'is
incompetent
for
a
court
to
order
that
a
sentence consisting of a fine with alternative imprisonment must run
concurrently with another sentence.'.
[9]
Manganyiwas
approved
by the Full Court in the Division in
S
v Jeffries.
In
Jeffries
the
accused was convicted on two counts under the
National Road
Traffic
Act 93 of 1996
and sentenced, on each count, to a fine of R1200 or
four months' imprisonment. Both sentences were ordered to run
concurrently.
Kruger J, delivering the majority judgment, held that
section 280(2)
makes it clear that where imprisonment is imposed as
an
alternative
to a fine, an
order
that sentences to run concurrently will be incompetent, because
concurrent running under
s 280(2)
can only be ordered where there are
sentences
of
imprisonment.
[2]
Kruger held
that it was no answer to say that the problem was solved by amending
the magistrate's sentence, as the full court did
in S v Mngadi
1991
(1) SACR 313
(T), to read that concurrent running only applied in
respect of the sentences of imprisonment.
[3]
[10]
The sentences imposed by the sentencing
magistrate is therefore not competent and falls foul of the
provisions of
section 280(2).
[11]
In
Jeffries
the majority resolved issue by
changing the magistrate's sentence by taking the two counts together
for sentencing purposes. The
amount of the fine remained the same.
The Court ordered that the sentence imposed by the magistrate be
deleted and substituted
with an order to the effect that both counts
are taken jointly for purposes of sentence; a fine of R2400 or four
months' imprisonment
is imposed and the order regarding deferment of
payment of the fine granted by the magistrate remains in place.
[12]
Whilst there could be no objection to
the order on review in
Jeffries,
namely by taking the counts together
for sentencing purposes, by virtue thereof that the accused was
convicted on two counts under
the
National Road Traffic Act 93 of
1996
and sentenced, on each count, to a fine of R1200 or four months'
imprisonment,
that
would unfortunately not be an appropriate order in this matter in
light of the nature of the offences of which the accused
persons were
found guilty.
[13]
A
Court's powers on automatic review does not include the power to
increase a sentence or make orders that are more onerous for
the
accused where the sentence imposed by the magistrate's court was a
competent sentence
[4]
.
Where
the sentencing magistrate however imposed an incompetent or unlawful
sentence, the Court may on automatic review impose the
correct
sentence, even if this would result in the sentence being increased
or the order being more onerous to the accused.
[5]
[14]
In terms of
section 304
of Act 51 of
1977 a Judge is required to certify that the proceedings are in
accordance with justice, not that the proceedings
are in accordance
with strict law. A Court on automatic review may therefore, in the
interests of justice, refuse to interfere
with an incompetent
judgment. See
R v Harmer
1906
T.S. 50
at p 52;
S v Zulu
1967
(4) SA 499
(T) at 502 D-H;
S v
Nteleki
2009 (2) SACR 323
(0)
para 7 and
S
v Cedars
2010 (1) SACR 75
(GNP) at
A-E. The Court can therefore confirm an incompetent sentence where
circumstances does not warrant the setting aside thereof.
[15]
This matter bears a striking resemblance
to the circumstances that were present in
Nteleki
supra where Van Zyl J (Van der Merwe
J, as he then was, concurring) concluded that it would not be in the
interests of justice to
set aside the incompetent sentence imposed in
that matter.
[16]
The accused persons are all Lesotho
citizens who were inter alia sentenced for contravening Section
49(1)(a) of the Immigrations
Act 13 of 2002. The accused persons'
addresses do not appear to have been confirmed as the chargesheet in
respect of each accused
refers to the residential addresses only as
being "Lesotho". The accused persons were convicted and
sentenced on 17 January
2022 and have already served the imprisonment
term. The review was only received by the Registrar on 10 May 2022.
The accused persons
would have been deported after completing the
sentence. For the same reasons as dealt with in
Nteleki
supra, it is conceivable that
considerable time, effort, inconvenience
and expense to both the State and the
accused persons will be involved in bringing the accused persons, as
Lesotho citizens, before
the court again. What will be required is
'probably cumbersome'
procedures
which will have to be followed in the State's endeavours to bring the
accused persons back to South-Africa whilst their
addresses are
unknown. As Van Zyl J held in
Nteleki
supra, it is conceivable that the
State may not even go to such effort and incur the accompanying
expense without being successful
in tracing the accused persons. For
the same reasons as held in
Nteleki
supra, this can result in the matter
not being brought to finality which may bring about results which
neither the accused, nor
the State desire and will not serve the
interests of either party. In addition, whilst it may be appropriate
in another matter,
I do not consider it to be in the interests of
justice to bring the accused back in these circumstances where they
have completed
the sentence as imposed.
[17]
The relevant gold bearing material was
not seized in terms of the provisions of the Act. The order should
have been made in terms
of
section 21(1)(b)
of the
Precious Metals
Act. The
correction of the order in this respect only, will not
affect the accused persons, nor does it result in the failure of
justice.
[18]
I would make the following order:
1.
The convictions
are confirmed.
2.
The sentence, duly amended to read, "In
terms of
section 21(1)(b)
of Act 37 of 2005 gold bearing material is
declared forfeited to the State", is confirmed.
N.
SNELLENBURG, AJ
I
concur and it is so ordered.
I.
VAN RHYN,
J
[1]
S v Manganyi
2007 (2) SACR 617
(T) [Manganyt].
[2]
S v Jeffries
2011 (2) SACR 580
(FB) [Jeffries] at para 12.
[3]
Jeffries supra para 12.
[4]
S v November and Three Similar Cases
2006 (1) SACR 213
(C) at 219E;
S v Nteleki
2009 (2) SACR 323
(0) para 4 [Ntelek1].
[5]
S v Msindo
1980 (4) SA 263
(BH) at 265 F-G.