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[2022] ZAECMHC 32
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S v Mndela (217700) [2022] ZAECMHC 32; 2023 (1) SACR 275 (ECM) (8 September 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
REF NO. 217700
Delivery
date: 08/09/2022
In the matter between:
THE STATE
vs
XOLISA
MNDELA
Accused
REVIEW JUDGMENT
JOLWANA J
:
[1]
The accused appeared in the magistrate’s court for the district
of Flagstaff in Flagstaff case no. 489A/2021 on a charge
of
contravening the provisions of
section 31
of the
Maintenance Act 99
of 1998
for his failure to pay maintenance in compliance with a
maintenance order. At the time the accused appeared in court the
arrears
had accumulated to R86 500.00.
[2]
However, instead of putting charges to the accused, the prosecutor
made an impromptu application to put into operation a suspended
sentence arising from a previous conviction of a failure to pay
maintenance. The said previous conviction for which the accused
was
sentenced and the said sentence suspended was in respect of a
different case being case no.313A/2020. The accused’s legal
representative argued that it was premature for the State to make
such application for putting into operation of the suspended
sentence
before the accused was convicted. The presiding magistrate found in
favour of the accused and dismissed the application
on the basis of
the prematurity of the application.
[3]
The senior public prosecutor was dissatisfied with the ruling of the
magistrate and requested that the matter be referred to
this Court
for review. It appears from the senior public prosecutor’s
covering letter that the reason for his request for
the matter to be
submitted for review is that the decision of the magistrate is wrong
in law. This appears to be on the basis that
the accused does not
have to be convicted several times before the State can be entitled
to apply for the putting into operation
of a suspended sentence.
[4]
Before I deal with the merits of the matter and the issue raised, I
consider it necessary to first deal with whether the proceedings
are
in any event reviewable. Generally speaking, proceedings in the
magistrate’s court are reviewable by a Judge in chambers
in
terms of
sections 304
and
304A
of the
Criminal Procedure Act 51 of
1977
in respect of concluded proceedings and before sentence
respectively. However, in this case both
sections 304
and
304A
are
not applicable. Therefore, the only basis on which this matter can be
subjected to review is in terms of
section 21
(1) (b) of the
Superior
Courts Act 10 of 2013
which reads:
“
(1)
A Division has jurisdiction over all persons residing or being in,
and in relation to all causes of action and all offences
triable
within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power–
(a)
to hear and determine
appeals from all Magistrates’ Courts within its area of
jurisdiction;
(b)
to review the
proceedings of all such courts;”
[5]
The grounds for the review of proceedings in the magistrates’
court are provided for in
section 22
of the
Superior Courts Act.
They
,
inter alia
, include gross irregularity in the
proceedings which is what seems to be the issue in this matter. I
understand the issue raised
by the senior public prosecutor in his
request for the referral for review of those proceedings by this
Court to be whether or
not as a matter of law an application cannot
be made for the putting into operation of a suspended sentence where
there has been
only one breach of the condition for the suspension of
the sentence. The answer is obviously in the affirmative. A
prosecutor needs
no more than one breach of the condition for the
suspension of the sentence to be entitled to make the application to
court for
the suspended sentence to be operationalised.
[6]
The senior public prosecutor’s dissatisfaction and his framing
of the referral issue seems to be informed by how the ruling
on the
issue was couched. To contextualise the subject matter of review, a
brief summary of the facts is apposite. On 6 May 2020
Mr Mndela was
convicted of failure to pay maintenance in case number 313A/2020 and
sentenced to pay a fine of R5000.00 or to 90
days imprisonment. That
sentence was wholly suspended for three years on condition that he
was not convicted of a failure to pay
maintenance committed during
the period of suspension.
[7]
On 22 July 2021 Mr Mndela was again convicted of a failure to pay
maintenance in respect of another matter being case number
671A/2020.
He was thereupon sentenced to pay a fine of R10 000.00 or to
undergo imprisonment for four months. That sentence
was also wholly
suspended for three years on condition that he was not convicted of a
failure to pay maintenance committed during
the period of suspension.
After this conviction no application for the putting into operation
of the sentence that was conditionally
suspended in case no.
313A/2020 was instituted. It is not clear why the said application
was not made. Presumably the failure to
pay maintenance in respect of
case no. 671A/2020 predated the conviction in case no. 313A/2020.
This is the only reason I can think
of why the said application could
not be made following the completion of the proceedings in case
number 671A/2020.
[8]
The ruling of the magistrate in respect of the application made in
the proceedings under case number 489A/2021 which was a new
matter on
which there was no conviction yet was that the application for the
putting into operation of the suspended sentence was
premature. When
the court made the said ruling it made it clear that in that matter
being case number 489A/2021, Mr Mndela had
not yet been convicted,
being the matter for which he had been arraigned.
[9]
This ruling is correct subject to the caveat that the prosecutor
could have brought and would have been entitled to bring the
same
application under case number 313A/2020 by summonsing the accused
after the conviction in case number 671A/2020. This of course
would
be if the proceedings in case number 671A/2020 were not only
completed but also if the period for instituting appeal proceedings
or automatic review processes where applicable had lapsed by
effluxion of time. Putting into operation a suspended sentence is
not
as easy as it may sound. It is subject to suitable procedures to
avoid the inevitable prejudice to the accused which may easily
occur
with grave consequences if it is not dealt with appropriately and
with due care.
[10]
Some of the applicable considerations in the operationalisation of a
suspended sentence were spelt out by Selikowitz J in
S v Hoffman
1992 (2) SACR 56
(C) at 63 c-g. I quote copiously from the sentiments
expressed therein where the learned Judge stated the legal position
as follows:
“
If
the court is asked to put a sentence into operation where the breach
has resulted in a subsequent conviction, the court hearing
the
application ought, in my view, to know what sentence has been imposed
in the later trial before it orders that the earlier
suspended
sentence be put into operation. Furthermore, it is both impractical
and potentially prejudicial to the accused to put
the suspended
sentence into operation in a case which is subject to automatic
review in terms of
s 302
or even 304A of the Act until the conviction
and sentence have been confirmed. Where a suspended sentence is put
into operation
the decision so to do is not subject to automatic
review nor is it appealable.
The
only way that the decision can be struck down is on review. Thus the
accused who is imprisoned as a result of the putting into
effect of a
suspended sentence has himself to move the Court in time ̶
consuming and costly proceedings if he wishes to have
the putting
into effect of his suspended sentences set aside. The putting into
effect of the sentence is a proceeding in the original
case where the
suspended sentence was imposed and the Court dealing the review of
the subsequent conviction will usually not be
aware that the
suspended sentence has been put into operation. It is thus, in my
view, undesirable that a suspended sentence be
put into operation
until the subsequent sentence has been imposed and proceedings have
been confirmed on review – where this
is required – and
also the time for the accused to lodge an appeal against his
subsequent conviction and/or sentence has
expired without any notice
of appeal having been given. The putting into operation of a sentence
before these stages have been
reached is not in the interests of the
administration of justice.”
[11] The presiding
magistrate was clearly correct in his ruling that the application for
the putting into operation of a suspended
sentence in proceedings
which had not reached any of the milestones mentioned in
Hoffman
was premature. The prosecutor should not have made the application
when she did, certainly not at the stage at which she did. The
correct procedure, as I said before, would have been for the accused
to be summonsed before court under case number 313A/2020 for
the
application for the putting into operation of the sentence that was
suspended in that case. The correct stage for that application
would
have been after the conviction and sentence in case under 617A/2020
or after the conviction and sentence in case number 489A/2021
once
the applicable appeal or review period would have lapsed or such
proceedings concluded.
[12] In the result the
following order shall issue:
1. The ruling of the
magistrate in case no.489A/2021, dismissing the application for the
putting into operation of the sentence
that was conditionally
suspended in case number 313A/2020 is confirmed.
2. The matter is remitted
back to the magistrate’s court and the prosecutor is granted
leave to make the application for the
putting into operation of the
sentence that was suspended in case no.313A/2020 if so advised
subject to the considerations mentioned
in this judgment.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
R.W.N.
BROOKS
JUDGE
OF THE HIGH COURT