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[2016] ZAGPPHC 513
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S v Thabethe and Another (641/15 , 1342/15, A368/2016) [2016] ZAGPPHC 513 (24 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 641/15
NELSPRUIT
CASE NUMBER: 1342/15
DATE:
24 MAY 2016
In
the special review:
STATE
And
G
THABETHE
.............................................................................................................................
Accused
TSINDANE
...................................................................................................................................
Accused
JUDGMENT
MOTHLE
J,
1.
This is
a special review from the Magistrate’s Court, Nelspruit
Mpumalanga.
2.
On 23
June 2015, G Thabethe and T Sindane, (“the accused”), who
were legally represented during the proceedings, pleaded
guilty to a
charge of theft of a number of items at Mr Price Store, Promenade,
Nelspruit. The provisions of Section 112(1) (a)
of the Criminal
Procedure Act, 51 of 1977 (“Act 51 of 1977”) were applied
and the accused persons were both convicted
as pleaded.
3.
In
sentencing the accused, the Magistrate recorded as follows:
“
Both:
in terms of Section 297(1)(a)(c) of Act 51 of 1977 the passing of
sentence is postponed for a period of three years."
4.
The
matter was then referred to this Court for review and allocated to me
for attention. I raised with the Magistrate a query in
the following
terms:
“
[1]
I noticed that the learned Magistrate relied on
Section 297(1)
of the
Criminal Procedure Act 51 of 1977
in dealing with the question of
sentence. In particular the court has, in terms of
Section 297(1)
,
postponed the sentence for a period of three years.
[2]
It
seems to me that in postponing the sentence the Learned Magistrate
applied subsection (1
)
(
a
)
(
ii),
which provides that the sentence may be postponed unconditionally.
However, the second leg of the unconditional postponement
of the
passing of the sentence mainly
,”
to
order such person to appear before the Court, if called upon before
the expiry of the date of the relevant period,”
was not stated.
[3]
Is
there any reason why the learned Magistrate did not include this part
of the sub-section. ?”
5.
I
received a response from the Senior Magistrate, A Van Der Merwe, of
the same Court, who agrees with the view that in handing down
the
postponement of a passing of a sentence, the Court may do so subject
to conditions
s297(1)(a)(i)
or unconditionally as in
s297(1)(a)(ii).
The provisions relating to postponement of sentence subject to
conditions are stated in detail under sub-section (1) (a) (i), from
(AA) to (hh). The subsection then adds the following at the end:
“
and
order such person to appear before court at the expiration of the
relevant period; or”
(My
emphasis).
6.
Where
the postponement of the passing of the sentence is effected
unconditionally, this is provided for in
s297(1)(a)(ii).
The relevant
provision, fully stated, reads as thus:
“
(1)
Where a court convicts a person of any offence, other than an offence
in respect of which any law prescribed a minimum punishment,
the
court may in its discretion -
(a)
postpone for a period not exceeding five years the passing of
sentence and release the person concerned -
0)
..
(ii)
unconditionally, and order such person to appear before the court, if
called upon before the expiry of the relevant period;
or”(My
emphasis).
7.
The last
portion of the sub-section quoted in bold letters above, was not
pronounced by the Additional Magistrate P Muruba.
8.
The
Senior Magistrate Van Der Merwe agrees, correctly so in my view, and
identifies the essential elements of the provision as being:
“
a.
The period of postponement may not exceed 5 years.
b.
The
postponement must be either conditionally (sec297(1)(a)(i) or
unconditionally(sec 297 (1)(a)(ii)).
c.
Whether
the postponement is conditionally or unconditionally, the sentence
must include an order for the accused person to appear
before the
court either on a specified date “at the expiration of the
relevant period” (conditional postponement) or
when called upon
to do so “before the expiration of the relevant period”
(unconditional postponement.
d.
When
a sentence is postponed conditionally, the conditions of postponement
must be specified. ”
9.
I am
accordingly of the view that the matter should be remitted to the
Magistrate’s Court for proper sentencing of the accused.
It is
imperative that in pronouncing sentence prescribed by statute, a
court of law should stay as close as possible to the wording
of the
relevant section of the Act.
10.
In the
premises, the sentence is incomplete and improper. It should thus be
set aside and be handed down properly.
11.
I
therefore make the following order:
(1)
The
sentence imposed by the Additional Magistrate P Muruba, on the
accused dated 23 June 2015 is hereby set aside;
(2)
The
matter is remitted to the Magistrate’s Court Nelspruit for a
proper sentencing of the accused in terms of Section 297(1)
(a) (ii).
S
P MOTHLE
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA
I
agree:
N
KOLLAP^N
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA