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2021
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[2021] ZANCHC 22
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S v Rebese (CA&R 15/21) [2021] ZANCHC 22 (23 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Review
number:
CA&R 15/21
Magistrate's
Case No:
A11/2021
In
the matter between:
THE
STATE
v
ELVIS REBESE
Coram:
Lever J et Stanton AJ
REVIEW
JUDGMENT
Lever
J
1
. This is a matter where the Chief Magistrate was made aware of an
irregularity in sentencing the accused by a Senior Magistrate
who
himself became aware of the irregularity when reviewing finalised
matters in Frances Baard District, Kimberley, The Chief Magistrate
referred the matter to this Provincial Division with a request for a
special review under the provision of s304(4) of the Criminal
Procedure Act 51 of 1977 (CPA).
2.
On investigation, it indeed transpired that this
is a matter for
review under the provisions of s 304(4) of the CPA.
3.
The facts of the matter are, the accused was charged
with the crime
of stealing a mobile phone from a parked vehicle. The accused pleaded
guilty and a statement was handed in under the
provisions of s112(2)
of the CPA. The accused was duly convicted. I am satisfied that the
plea and the conviction are in accordance
with justice.
4.
The problem arises in the sentence that the presiding
magistrate
purported to impose on the accused. The record shows that the
presiding magistrate intended to impose a sentence of direct
imprisonment for a period of three (3) years with the Correctional
Services having the option in appropriate circumstances having
the
option to release the offender. Clearly the presiding magistrate
intended to sentence the offender under the provisions of s276(1)(i)
of the CPA.
5.
However, in pronouncing the sentence the presiding
magistrate
sentenced the offender to three (3) years imprisonment under the
provisions of s276(1)(h) of the CPA.
6.
Section 276(1)(h) of the CPA provides for correctional
supervision
and not the direct imprisonment the presiding magistrate obviously
intended. In corresponding with the presiding magistrate,
he
confirmed that a period of direct imprisonment was envisioned and
that his reference to s276(1)(h) as opposed to s276(1)(i) of
the CPA
was a bona fide error on his part.
7.
Imposing a sentence of correctional supervision in terms of
s276(1)(h) of the CPA requires that the provisions of s276A of the
CPA also have to be complied with. The provisions of the said section
read:
"276A(1) Punishment shall, subject to the
provisions of
s 75
of the
Child Justice Act, 2008
, only be imposed
under
section 276(1)(h)
-
(a) after a report of a probation officer or a
correctional official has been placed before the court, . . . "
8.
The provisions of
s75
of the
Child Justice Act do
not apply to this
case.
9.
No report of a probation officer or a correctional
official was
placed before the court when the offender was sentenced. The
sentencing of the offender was therefore irregular.
10.
In the circumstances, the sentencing of the offender is set aside,
and the
matter is referred back to the same presiding magistrate to
commence sentencing afresh.
Lawrence
Lever
Judge
Northern
Cape Provincial Division
I
agree,
Alme
Stanton
Acting
Judge
Northern
Cape Provincial Division