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2021
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[2021] ZANCHC 57
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S v Sibiya (CA & 47/2021) [2021] ZANCHC 57 (22 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Special
Review No: CA & 47/2021
Received
on: 20/10/2021
Available
on: 22/10/2021
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
THE
STATE
APPLICANT
and
ERNEST
SAM
SIBIYA
ACCUSED
Coram:
Mamosebo J et Lever J
JUDGMENT
ON SPECIAL REVIEW
MAMOSEBO
J
[1]
This matter was placed before me on special review by the Acting
Magistrate, Mr T
Ngwenya, with a request for correction to the
sentence imposed.
[2]
The accused was charged with 3 counts of Housebreaking with intent to
steal and theft
and appeared in court at Delportshoop in the district
of Frances Baard. He was legally represented. The State withdrew the
charges
against the accused in count 2. He pleaded guilty on counts 1
and 3. His legal representative submitted a statement in terms of
s
112(2) of the Criminal Procedure Act
[1]
(the CPA) in which he admitted all the elements of the offences
proferred against him.
[3]
The Magistrate explains that the reason for submitting this case on
special review
is that while he found the accused guilty on both
counts one and three on 7 July 2021, he omitted to include the phrase
which appears
at page 12 line 11 of the record of the sentencing
proceedings that he will take count 1 and 3 together for the purpose
of sentence,
on the J15, where he documented the following sentence
on 24 August 2021:
“
In
terms of
Section 78
of the
Child Justice Act 25 of 2008
read with
Section 276 (1)(c) of the Criminal Procedure Act 51/1977 12 (twelve)
months imprisonment wholly suspended for a period
of five years on
condition that the accused [is not
]
found guilty of
housebreaking with intent to steal and theft committed during the
suspension period of which a sentence of direct
imprisonment is
imposed without an option of a fine. Accused is declared unfit to
possess a firearm in terms of section 103 of
Act 60 of 2000.”
[4]
The J15 is clearly marked “reviewable” with the disposal
directions of
D7, which means the record can only be disposed after 7
years.
[5]
This review is in terms of s 302(1) of the CPA because the Magistrate
has imposed
a sentence of 12 months imprisonment, which is wholly
suspended for a period of five years on specified conditions. This
sentence
exceeds a period of three months whereas the Magistrate has
not held the substantive rank of Magistrate for a period of seven
years.
[6]
Section 303 of the CPA deals with the transmission of the record but
more importantly,
is for the Magistrate to bear in mind that the
record must reach the High Court within a period of one week and this
is peremptory.
See
S
v Mekula
[2]
.
This review was only referred after an expiry of a period of two
months. Any delays in the submission of the record must be avoided
at
all costs. Eksteen J’s remarks in
Mekula
[3]
are necessary:
“
[13]
It follows that any failure to comply with the provisions of s 303 of
the Act calls for a cogent explanation.
In the circumstances, in
every instance where the delay in forwarding the record exceeds the
prescribed time limit, the record
must be accompanied by a proper
explanation setting out the reasons for the delay and the inability
to comply with the time periods
as set out in the section.”
[7]
The learned trial Magistrate has in this instance given a full and
detailed explanation
which we accept. The Magistrate should, however,
note the time period set out in s 303 of the CPA.
[8]
Having read the record of proceedings, I have no doubts that the
proceedings were
in accordance with justice and that the accused was
afforded a fair trial. Taking cue from the pronouncements by Majiedt
AJA, then,
in
S
v Olivier
[4]
we are of the view that the trial court recognised factors favourable
to the accused by wholly suspending the sentence of imprisonment
and
ameliorated the cumulative effect of the sentence by taking the two
counts together for purposes of sentence. There are no
grounds for
the review Court to interfere with the sentence except to add the
qualifying omitted phrase preceding the sentence
as will appear in
the first order.
[9]
In the result, the following order is made:
“
1.
The two counts, count 1 and 3, are taken together for purposes of
sentence.
2.
In terms of
section 78
of the
Child Justice Act, 75 of 2008
, read
with
section 276(1)(c)
of the
Criminal Procedure Act, 51 of 1977
, the
accused is sentenced to 12 (twelve) months imprisonment wholly
suspended for a period of 5 years on condition that the accused
is
not found guilty of the offence of housebreaking with the intent to
steal and theft committed during the period of suspension
of which a
sentence of direct imprisonment is imposed without an option of a
fine.
3.
The accused is declared unfit to possess a firearm in terms of
section 103
of Act 60 of 2000.”
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
concur
L
LEVER
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
[1]
51
of 1977
[2]
2012
(2) SACR 521
(ECG) at para 13
[3]
At
525 para 13
[4]
2010
(2) SACR 178
(SCA) at 187 a-b