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2016
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[2016] ZAFSHC 19
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S v Tolo (4/2016) [2016] ZAFSHC 19 (4 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Review No.: 4/2016
In
the review between:
THE
STATE
and
MPHO
TOLO
CORAM:
VAN
ZYL, ADJP
et
EBRAHIM,
J
JUDGMENT
:
EBRAHIM,
J
DELIVERED
ON
:
4
FEBRUARY 2016
[1]
This is a special review in terms of
section 304(4)
of the
Criminal
Procedure Act 51 of 1977
. In this matter the presiding
Magistrate sentenced the accused on conviction of two counts of
culpable homicide (taken together)
to a sentence of 5 years
imprisonment wholly suspended for 5 years on condition that the
accused is not convicted of culpable homicide
involving a vehicle
alternatively reckless or negligent driving alternatively
inconsiderate driving committed during the period
of suspension.
The accused’s driver’s license was neither endorsed nor
suspended.
[2]
On reconsideration of the sentence, a colleague of the presiding
Magistrate realised, quite correctly that in imposing the said
sentence the presiding Magistrate had exceeded the limits of his
punitive jurisdiction which is 3 years in terms of
section 92(1)
(a)
and (b) of Act 32 of 1944 (The Magistrate’s Court Act 1944), as
amended. He also considered that the Magistrate
had acted
irregularly in coming to a decision not to suspend the driver’s
licence of the accused without hearing
viva
voce
evidence as required by
Section 35
of the
National Road Traffic Act
93 of 1996
but had based his decision in this regard on the oral
submissions of the accused’s legal representative.
[3]
The presiding Magistrate did not act in compliance with statutory
precepts and perquisites laid down in the Magistrate’s
Court
Act 1944 and the
National Road Traffic Act 1996
. The
proceedings were not conducted in accordance with justice and the
sentence must therefore be set aside.
[4]
The following order is therefore made:
1.
The sentence of 5 years imprisonment wholly suspended for a period of
5 (five) years on condition that the accused is not
convicted of
culpable homicide where a vehicle is involved, alternatively reckless
or negligent driving alternatively inconsiderate
driving committed
during the period of suspension is set aside and the matter is
remitted to the magistrate for sentencing
afresh.
_____________
S.
EBRAHIM, J
I
concur.
________________
C. VAN ZYL, ADJP
/em