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[2017] ZAFSHC 107
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S v M (87/2017) [2017] ZAFSHC 107 (29 June 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No: 87/2017
In
the matter between:-
THE
STATE
STATE
and
K
M
ACCUSED
CORAM:
MBHELE, J et MHLAMBI, J
DELIVERED
ON:
29 JUNE 2017
SPECIAL
REVIEW
MHLAMBI,
J
[1]
This case came before us by way of special review to determine
whether the sentences passed by the learned Magistrate were
reasonable and appropriate.
[2]
The accused was charged in the magistrate’s Court at
Phuthaditjhaba with the crime of theft
(Read with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
)
in that upon or about 14 November 2015 and at Mandela
Park, in the Regional Division of Witsieshoek, the accused did
unlawfully
and intentionally steal the following items, to wit 1x
packet cigarettes to the value of R 17.00, the property or in the
lawful
possession of Mpho Lethojane.( It is not clear why the
reference was made to the minimum sentence legislation as it is not
relevant
in the given circumstances).
[3]
The transcribed record reflected the following:
“
Prosecutor
:
As it pleases Your Worship, State calls CJ30/2015, the State versus
K. M. The Presiding Judicial Officer is Mrs Radebe; public
prosecutor
Mr Marawa; the accused person is defended by Mr Nhlapo; our court
interpreter is Mr Lephoto; our court clerk is Mr Pontso
Mongalo. We
are proceeding Your Worship, may I put the charge?
Court:
You
may proceed.
Persecutor:
As it pleases, Your Worship.
PROSECUTOR PUTS
CHARGE TO ACCUSED
COURT:
Thank you Mr M, do you understand the charge as put to you by the
prosecutor?
ACCUSED
:
I understand the charge, Your Worship.
COURT:
Thank you and how do you plead?
ACCUSED
:
I plead guilty, Your Worship.
ACCUSED PLEADS GUILTY
TO CHARGE
COURT
:
Thank you. Mr Nhlapho?
MR NHLAPHO
:
Your Worship, I do confirm appearance on behalf of the accused. I
also confirm that the plea of guilty is indeed in accordance
with the
client’s instructions. And Your Worship, we will humbly request
that we proceed in terms of
Section 112
(1)(a) of Criminal Procedure
Act, Your Worship as it pleases the Court.
COURT
:
Do you also accept the Plea?
PROSECUTOR:
As it pleases Your Worship, we accept it.
COURT:
Thank you.
JUDGEMENT
And the child offender
is found
GUILTY
of theft he has already
pleaded guilty in terms of
section 112(1)(a)
of the
Criminal
Procedure Act 51 of 1977
.
PROSECUTOR
:
As it pleases, Your worship no previous convictions.
NO PREVIOUS
CONVICTIONS PUT TO THE ACCUSED
COURT:
We may then postpone the matter for pre-sentence report?
MR NHLAPHO
:
For pre-sentence report?
COURT:
Yes. It takes six weeks/
PROSECUTOR
:
As it pleases, Your Worship.
COURT
:
Okay, we are looking for a date in August?”
[5]
The court adjourned and resumed on 8 December 2016 for the purposes
of sentence. The transcribed record reads as follows:
SENTENCE
“
When it comes
to sentencing, the Court is just going to be very brief. The Court
will take into consideration that the accused pleaded
guilty to the
charge as a sign of remorse. He did not waste the Court’s time.
The value of the item stolen is R 17.00. And
that the child is still
17 years old and no previous convictions. It was also recommended by
the probation officer that the child
be given a postponed sentence or
a wholly suspended sentence.
But again, it is also
the duty of the Court to protect the interest of the community. That
justice is not just supposed to be done,
but must be seen to be done
in public. So today the child offender will be
FINED R
300.00 OR SIXTY DAYS (60) IMPRISONMENT, WHOLLY SUSPENDED FOR THREE
YEAR,
on condition that the child must not be found
guilty or convicted of theft or attempted theft during the period of
suspension.
INTERPRETER
:
The accused understands the sentence, Your Worship.
COURT:
Thank you
COURT ADJOURNS.
[6]
Section 112
of the
Criminal Procedure Act 51 of 1977
reads as
follows:
“
Where an
accused at a summary trial in any court pleads guilty to the offence
charged, or to an offence of which he may be convicted
on the charge
and the prosecutor accepts that plea-
a)
the
presiding judge, regional magistrate or magistrate may, if he or she
is of the opinion that the offence does not merit punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the Gazette, convict the accused in
respect of the offence to which he or she has pleaded
guilty on his
or her plea of guilty only and-
(i) impose any
competent sentence, other than imprisonment or any other
form of detention without the option of
a fine or a fine exceeding
the amount determined by the Minister from time to time by notice in
the Gazette; or
(ii) deal with the
accused otherwise in accordance with law;”
[7]
The lawfulness of the conviction and sentence are not in issue as the
imposition of the sentence of a fine of R 300.00 or 3
months
imprisonment is beneath the maximum fine or imprisonment provided
for. The magistrate was competent to impose that sentence.
However,
the question that arises is whether the magistrate would have
convicted and sentenced the accused to the same sentence
had she not
requested evidence of a probation officer before sentence.
[8]
The accused was defended, and the state accepted the plea and that
the matter should be finalised on the basis of that plea.
With minor
offences, courts convict on a mere plea of guilty without evidence as
it must be obvious that the sentence must be less
than a certain
level and that the conviction can take place without the need for an
address on sentence
[1]
. In my
view, the magistrate was influenced by the evidence of the probation
officer. She had not applied her mind to the prescripts
of the
section; and, had she done so, would have, in the given
circumstances, imposed a much lesser sentence
[2]
.
[9]
The following order is therefore made:
ORDER:
1.
The
sentence of R 300.00 or 3 months imprisonment is set aside and is
substituted with the following sentence: the accused is cautioned
and
discharged.
________________
J.J
MHLAMBI, J
I
concur
________________
N.M
MBHELE, J
[1]
Hiemstra’s Criminal procedure Service issue 7, May 2014; 17-2:
S v Addaba, S v Ngema, S v Van Wyk 1992 (2) SACR 325 (T).
[2]
S v Onesmus, S v Amukoto, S v Mweshipange
2011 (2) NR 461
(HC) at
17; Liebenberg JS comments on 17-6; Commentary on the
Criminal
Procedure Act: Du
Toit et Alii, Revision Service 53, 2014.