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[2018] ZAKZPHC 58
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S v Mazibuko (R 432/2018, 18/18, B504/18) [2018] ZAKZPHC 58; 2019 (1) SACR 239 (KZP) (29 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
High
Court No: R 432/2018
Magistrate’s
Serial No: 18/18
Magistrate’s
Case No: B504/18
In
the matter of:
THE
STATE
versus
THOLI
BEAUTY MAZIBUKO
REVIEW JUDGMENT
Date of judgment: 29
October 2018
Gorven
J
[1]
The accused was charged in the Magistrate’s Court, Estcourt,
with one count of contravening s 50(1) read with 90(1)
(a)
to
(q)
of the
National Land Transport Act 5 of 2009
. It was
alleged that she operated road-based public transport without the
requisite permit. She pleaded guilty and, after the learned
magistrate applied the provisions of s 112(1)(b) of the Criminal
Procedure Act 51 of 1977 (the Act), was convicted as charged.
[2]
She was thereafter sentenced to pay a fine of R10 000 or in
default of payment to undergo 12 months’ imprisonment,
half of
which was suspended for a period of five years on condition that she
was not convicted of a similar contravention where
the contravention
took place within the period of suspension. The sentencing took place
on 4 October 2018.
[3]
The matter came on automatic review on 29 October 2018. Shortly
before receiving the matter, a judgment of this division,
S v
Brits
(DR 84/2018, 12 October 2018) was brought to my attention.
In that matter, also sent on automatic review, the magistrate in
question
had been appointed on 9 January 2017. He had sentenced that
accused person to pay a fine of R2 000 or, in default, to
imprisonment
for a period of 4 months. The whole sentence was
suspended for a period of 5 years on certain terms.
[4]
The learned judges in that matter considered the provisions of
s 302(1)
(a)
and 276(2)
(a)
of the Act. They
concluded that, in imposing a period of imprisonment of four months,
the learned magistrate had exceeded his sentencing
jurisdiction. They
held that: ‘The magistrate’s jurisdiction in respect of s
302 of the Act is limited to three (3)
months imprisonment.’ As
a consequence, the sentence was reviewed, set aside and one of R2 000
or three months’
imprisonment was substituted, all suspended
for five years on the same terms as had been imposed by the
magistrate.
[5]
Section 302(1)
(a)
of the Act reads as follows:
‘
(1)
(a)
Any sentence imposed by a magistrate's court-
(i)
which, in the case of imprisonment (including detention in a child
and youth care centre providing a programme contemplated
in section
191(2)
(j)
of the Children's Act, 2005 (Act 38 of 2005)),
exceeds a period of three months, if imposed by a judicial officer
who has not held
the substantive rank of magistrate or higher for a
period of seven years, or which exceeds a period of six months, if
imposed by
a judicial officer who has held the substantive rank of
magistrate or higher for a period of seven years or longer;
(ii)
which, in the case of a fine, exceeds the amount determined by the
Minister from time to time by notice in the
Gazette for the
respective judicial officers referred to in subparagraph (i),
shall
be subject in the ordinary course to review by a judge of the
provincial or local division having jurisdiction.’
The
amount determined by the Minister is currently R6 000 in the case of
a judicial officer who has not held the rank of magistrate
or higher
for a period of seven years, and R12 000 in the case of a judicial
officer who has held the rank of magistrate or higher
for a period of
seven years or longer.
[6]
And s276(2)
(a)
of the Act is to the following effect:
‘
Save
as is otherwise expressly provided by this Act, no provision thereof
shall be construed-
(a)
as authorizing any court to impose any sentence other than or any
sentence in excess of the sentence which that court may impose
in
respect of any offence’.
This
was held to demonstrate that, since mention was made of the amounts
and periods in s 302(1)
(a)
, any sentence in excess of those
amounts or periods exceeded the jurisdiction of the magistrates
concerned.
[7]
In the present matter, the learned magistrate was appointed to the
rank of magistrate on 1 November 2015. He had thus not held
the rank
of magistrate for a period of seven years or longer at the time of
sentencing. If the finding in
S v Brits
is to be applied the
learned magistrate exceeded his sentencing jurisdiction. That would
require the sentence to be reviewed and
set aside because it exceeded
both R6 000 and three months’ imprisonment.
[8]
In
S v Brits
, the learned judges clearly misread the
provisions of s 302(1)
(a)
of the Act. Section 302(1)
(a)
simply provides when an automatic review is triggered. It has nothing
to do with the sentencing jurisdiction of magistrates. The
finding
that: ‘The magistrate’s jurisdiction in respect of s 302
of the Act is limited to three (3) months imprisonment’
is
clearly wrong. It should not be followed or applied.
[9]
An automatic review under s 302(1)
(a)
of the Act is clearly
triggered in the present matter. Having reviewed the conviction of
the accused and the sentence imposed by
the learned magistrate, I am
satisfied that the proceedings appear to be in accordance with
justice. They are therefore so certified
in terms of s 304(1) of
the Act.
Gorven
J
Vahed
J