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[2017] ZAFSHC 153
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S v Gqiba (R132/2017) [2017] ZAFSHC 153 (14 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R132/2017
In
the application between:
THE
STATE
and
MZWANDILE
PATRIC GQIBA
CORAM:
NAIDOO, J
et
LEFENYA,
AJ
JUDGMENT
BY:
LEFENYA,
AJ
DELIVERED
ON:
14
SEPTEMBER 2017
REVIEW
JUDGMENT
[1]
This matter comes before us on special review in terms of section
304
(4) Act 51
of 1977 from the Magistrate Bloemfontein.
The
case is brought to this court by Senior Magistrate Matshaya after the
Control Magistrate was of the view that the proceedings
were
irregular and that the conviction and sentence should be set aside.
[2]
The accused, Mr. Mzwandile Gqiba, was convicted of theft of cosmetics
valued at R 94, 95 and the Magistrate after the state
proved a list
of previous conviction against accused, cautioned and discharged
accused on sentence.
[3]
The control Magistrate found the following to be irregular;
3.1
That the
presiding officer invoked the provisions of section 68 (1) e
Act 51 of 1977 incorrectly by revoking accused’s
warning and
keeping him in custody when this could not have been done.
3.2
That the
charge was not read to the accused before he pleaded.
3.3
That
despite advice by the prosecutor the magistrate invoked the
provisions of section 112 (1) (a) instead of section 112 (1) (b)
of
the Criminal Procedure Act 51 of 1977 (CPA).
3.4
That after
conviction the magistrate did not explain the rights of accused in
mitigation nor afford him an opportunity to lead the
necessary
evidence in mitigation.
3.5
That the sentence imposed is inappropriate taking into account the
previous convictions of accused and that
the magistrate has accepted
that the accused has the propensity of committing offences of which
dishonesty is an element.
[4]
Section 304(4)
Criminal Procedure Act 51 of 1977
states that if in
any criminal proceedings a magistrate’s court has imposed a
sentence which is not subject to review in
the ordinary course in
terms of
section 302
or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial or local
division having jurisdiction
or any judge thereof that the
proceedings in which a sentence was imposed were not in accordance
with justice, such court or judge
shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge in
terms of
section 303
or this section.
Section 303
reads as follows:
“
303.
Transmission of record.
- The clerk of the court in question shall within one week
after the determination of a case referred to in paragraph
(a) of
Section 302
(1) forward to the registrar of the provincial or local
division having jurisdiction the record of the proceedings in the
case
or a copy thereof certified by such clerk, together with such
remarks as the presiding judicial officer may wish to append thereto,
and with any written statement or argument which the person convicted
may within three days after imposition of the sentence furnish
to the
clerk of the court, and such registrar shall, as soon as possible,
lay the same in chambers before a judge of that division
for his
consideration.”
[5]
The Magistrate responded to the query and gave reasons why she
proceeded in the manner she did. According to the trial
Magistrate she does not see the basis for the query by the Control
Magistrate irrespective of the defects appearing on the record
and
the Control Magistrate making them clear. The trial magistrate
went on to cite the value of the goods, the fact that
they were
recovered and further that count 2 was withdrawn as the reason for a
lesser sentence. In my opinion these were
not the only factors
to consider.
[6]
The accused has a long list of previous convictions which are
relevant and which, amongst other reasons was the factor to consider
and which the Control Magistrate correctly raised.
[7]
Having read the record of proceedings and reasons advanced by the
Control Magistrate, this court finds that the control Magistrate
was
correct in finding irregularities on the part of the trial
magistrate.
[8]
The reasons advanced by the Control Magistrate are numerous and in my
opinion sound enough to warrant intervention by this court
in terms
of the above mentioned section.
[9]
It was an irregularity, amongst others, for the trial magistrate to
allow the accused to plead to the charge which was not clearly
read
out to him. The trial magistrate went on further to misdirect herself
by not invoking the provisions of the correct section
of the CPA, and
looking at the previous convictions of the accused the sentence
imposed is not in accordance with justice.
[10]
The court is therefore satisfied that that the proceedings and
sentence imposed were not in accordance with justice.
ORDER
I
accordingly propose that the following order be made:
1.
The
conviction and sentence are set aside.
2.
The matter
is referred back to the Magistrates’ court for the trial to
start
de
novo
before
another magistrate.
_______________
B.R. LEFENYA AJ
I
agree it is so ordered
_____________
S. NAIDOO, J