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South Africa: Free State High Court, Bloemfontein
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[2016] ZAFSHC 67
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S v M (34/2016) [2016] ZAFSHC 67 (12 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: 34/2016
In
the review case between:
THE
STATE
and
J.
J. M.
CORAM:
VAN
ZYL, J
et
ZIETSMAN, AJ
JUDGMENT
BY:
ZIETSMAN,
AJ
DELIVERED
ON:
12 MAY
2016
[1]
This is a matter sent on special review by the Magistrate of
Sasolburg, Mr D van Rooyen on 17 November 2015.
[2]
In accordance with the submission by the Magistrate the accused was
found guilty on a charge of theft of cash in the amount
of R1 666
and cigarettes to the value of R265 by Magistrate Neyt on 29 June
2016. The accused was sentenced to 6 months
imprisonment wholly
suspended for a period of 5 years on certain conditions.
[3]
At the time of conviction and sentence the accused was only 17 years
of age. He was represented at the hearing by an attorney
and he
pleaded guilty. A section 112(2) written statement was handed
in.
[4]
According to the Magistrate, and during a routine checking of
completed work he became concerned because the Magistrate imposed
a
sentence contrary to the provisions of section 77 of the Child
Justice Act, 75 of 1998 in that a pre-sentence report prepared
by a
probation officer was a pre-requisite and even so where the sentence
to imprisonment was wholly suspended. In this instance
he also
referred to section 85 of the Child Justice Act which determines that
if a child has been sentenced to any form of imprisonment,
the
sentence shall be subject to review in terms of
section 304
of the
Criminal Procedure Act 51 of 1977
.
[5]
The Magistrate further referred us to
S
v Kwanele Singana
(CA & R 54/2015) [2015] ZAECPEHC 9 delivered on 4 March 2015
where it was found that “any form of imprisonment”
includes a wholly suspended sentence.
[6]
After the special review was considered initially, the Review Judge,
Pienaar AJ made certain enquiries as to the second page
of the
section 112(2)
statement which was not put before him as well as the
appointment date of Magistrate Neyt. The review was referred
back on
19 February 2016 and the answer from the Magistrate was
received on 28 April 2016
[7]
Magistrate van Rooyen replied indicating that Magistrate Neyt was
indeed properly appointed as at 29 June 2015 when the matter
was
concluded and the full original
section 112(2)
statement was
furnished.
[8]
The Magistrate is of the opinion that the conviction is in order but
that the sentence should be reconsidered by the Magistrate
after a
pre-sentence report has been obtained. I agree with the views
expressed by the Magistrate.
[9]
On the aforesaid premises I am satisfied that the conviction is in
order but the matter should be re-submitted to the Magistrate
to
ensure that a pre-sentence report is obtained and considered before
the accused is sentenced afresh.
[10]
Therefor I make the following order:
1.
The
conviction is confirmed.
2.
The
sentence is set aside and the matter is referred back to the
magistrate to consider sentence afresh after a pre-sentence report
had been obtained.
________________
P.
ZIETSMAN, AJ
I
concur.
______________
C.
VAN ZYL, J
/eb