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2017
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[2017] ZAFSHC 185
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S v Molehe (R166/2017) [2017] ZAFSHC 185 (26 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: R166/2017
In
the matter between:
THE
STATE
and
MODUPE
MARTIN MOLEHE
CORAM:
RAMPAI,
et
MATHEBULA,
J
JUDGMENT
BY:
RAMPAI,
J
DELIVERED
ON:
26
OCTOBER 2017
SPECIAL
REVIEW
[1]
The matter came to court by way of a special review in terms of
section 304(4) Criminal Procedure Act 51/1977. The matter
originated from Thaba Nchu District Court. It was allocated to
me on the 19 October 2017. This review proceedings were
initiated by the trial magistrate.
[2]
The review concerns the sentence. The accused faced two
criminal charges. The first charge was assault. The
prosecution alleged that he unlawfully and intentionally assaulted Ms
Masego Diphoko at Beaver Camoe Store, Thaba Nchu on 16 May
2017.
The second charge was one of the robbery. The prosecution
alleged that he unlawfully and intentionally assaulted
Mpho Pitso at
Selosesha, Thaba Nchu on 16 May 2017 and with force took her property
being a Samsung Galaxy cellphone worth R2000.
He pleaded guilty
to both charges in terms of sec 112 Act No 51/1977.
[3]
The accused was then convicted on the strength of his plea in terms
of sec 112(2). He was convicted on 20 July 2017.
As
regards assault he was sentenced to a fine of R2000 or 6 month term
of imprisonment in default of payment. The first charge
or
sentence is not before us on review. As regards robbery he was
sentenced to pay a fine of R3000 or to undergo a 42 month
term of
imprisonment. Half of the latter sentence was conditionally
suspended for three years.
[4]
On 28 September 2017 the trial magistrate signed a special request
for the review of the sentence imposed in respect of the
charge of
robbery. The magistrate explained that she realised on 28 July
2017 that the custodial portion of the sentence
she imposed on the
accused was not competent. At paragraph three of her memorandum
she wrote:
“
I am bringing this
matter to the High Court for the amendment of the error of 42 months
to that of sentence of 36 months as reflected
below.”
[5]
The sentence imposed on the accused in respect of the second charge
of robbery reads as follows:
“
In respect of
count 2, you are
fined
to pay the amount of R3 000.00 or to undergo 42 months
imprisonment, half of which is suspended for a period of three
years
on condition that you are
not found guilty of robbery committing during the period of
suspension.”
[6]
The penal jurisdiction of a district court is 36 months. The
custodial term of the sentence imposed on the accused was
42 months.
It exceeds the jurisdiction of the district magistrate by 6 months.
To that extent the sentence imposed
on the accused was erroneous.
The district magistrate did not have the competency to impose it.
Consequently I am inclined
to accede to the special request of the
magistrate in order to correct the error.
[7]
In the result I make the following order:
7.1 The sentence
imposed on the accused by the district magistrate at Thaba’Nchu
on 20 July 2017 in respect of the second
charge of robbery is hereby
set aside.
7.2 The nullified
sentence is substituted with the following:
“
The
accused is fined R3000 in default of which to undergo 36 months
imprisonment, half of the sentence is suspended for a period
of 3
years on condition that the accused is not found guilty of robbery
committed during the period of suspension.”
______________
MH RAMPAI, J
I
concur
________________
AM MATHEBULA, J