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[2018] ZAGPPHC 222
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S v Moloantoa (342/17) [2018] ZAGPPHC 222 (22 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 342/17
REVIEW
CASE: k617/17
MAGISTRATE'S
SERIAL NO.: 39/17
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
STATE
and
GEORGE
JHN
MOLOANTOA
SPECIAL
REVIEW
JUDGMENT
VAN
DER WESTHUIZEN, A J
[1]
The Trial Magistrate of Oberholzer Magistrate's Court sentenced the
accused to three years imprisonment
and has ruled that the whole term
of imprisonment is to be served, i.e. without the possibility of
parole.
[2]
It appeared to the initial reviewing judge that the aforementioned
ruling was in conflict
with the provisions of s 2768(1)(b) of the
Criminal Procedure Act, 51 of 1977, (the Act) which stipulates that
the non parole
period may not exceed two thirds of the term of
imprisonment and requested the Trial Magistrate to comment thereon.
The latter
commented that through an oversight the whole period of
imprisonment was to be served without the option of parole. The Trial
Magistrate
requested that the sentence be corrected.
[3]
I referred the matter to the Director of Public Prosecutions for his
opinion. The Director of
Public Prosecutions opined that:
(a)
The accused, who conducted his own defence, pleaded guilty, and
according to the explanation
of the accused, the plea of guilty was
correct;
(b)
The sentence of three years imprisonment was appropriate;
(c)
However, the order of non-parole was in conflict with the provisions
of s 276B(1)(b)
of the Act, that section providing that the period of
non-parole may not exceed two thirds of the term of imprisonment;
(d)
The order in terms of s 2768(1)(a) of the Act must be treated with
circumspection with reference
to
S v Strydom
[2015] ZASCA 29
and in the present matter no investigation appears to have been
conducted in that regard. The accused was further not warned that
the
provisions of the said section would be considered. The accused was
further not afforded an opportunity to address the court
on that
issue. (See
S v Mhlongo
2016(2) SACR 611 (SCA)) .
[4]
It follows that the Trial Magistrate's failure to follow the
prescribed procedure constitutes
a misdirection. (S
v Britz
2016
JDR 0980 (SC))
[5]
It further follows that the conviction stands to be confirmed as well
as the sentence of
three years of imprisonment, but not the order of
non parole.
[6]
I propose the following order:
(a)
The conviction is confirmed;
(b) The
sentence of three years of imprisonment is confirmed;
(c)
The order of non-parole is set aside.
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
I
agree , and it i s so
ordered.
AJ
BAM
JUDGE
OF THE HIGH COURT