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[2016] ZAGPPHC 503
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S v Msibi (A436/16) [2016] ZAGPPHC 503 (30 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Magistrates
Serial No: 02/2012
High
Court Ref No: 384
30/6/2016
A436/16
In
the matter between:
30/6/2016
The
State
And
Vusiwe
Harrison
Msibi Accused
REVIEW
JUDGMENT
Maumela
J.
1.
This matter came before court as a special review. Before the
magistrates court for the district of Piet Retief, sitting in Piet
Retief, (the court a
quo),
the accused; Vusiwe Harrison Msibi,
who was legally represented, was charged with theft.
BACKGROUND.
2.
On the 22nd of January 2013, before the court a
quo
the
accused pleaded guilty. He was convicted of theft as charged. He was
sentenced to pay a fine of R 1800-00 or to undergo 6 months
imprisonment. The whole sentence was suspended for 5 years on
condition that the accused is not found guilty of theft, committed
during the period of suspension.
3.
The conviction of the accused was singularly on the strength of his
plea in terms of section 112 (1) (a) of the Criminal Procedure
Act
Number 51 of 1977. The theft in issue involved 31 wattle poles. Each
pole is 3 meters in length. The poles were property belonging
to
Mkhondo Municipality. They were valued at R 2000-00.
4.
The reason cited for referring the case for special review is that
the sentence meted out to the accused by the court a
quo
is
incompetent. The reviewing judge sought reasons from the acting
additional magistrate on:
- Why the additional
magistrate, apparently acting
mero motu,
regarded the offence
..... as one that, without the assistance of the prosecutor, does not
merit a sentence exceeding a fine of
R 1 500-00.
5.
The transcript relating to this case was riddled with "inaudible"
recordings. Reconstruction of the record was successfully
done. The
additional magistrate submitted that whereas conviction was in order,
the sentence warrants to be corrected.
THE
LAW.
6.
It is trite
that where common law offences are concerned, the sentence meted out
pursuant to a guilty plea in terms of section 112
(1) (a) of the
Criminal Procedure Act, has to conform to the provisions of that
section. See S v Kholoane.
[1]
RE
CONVICTION AND SENTENCE.
7.
The court finds the conviction of the accused before the court a
quo
to be in accordance with the law. It is trite that where an
accused pleads guilty in terms of section 112 (1) (a) of the Criminal
Procedure Act, the sentence meted out has to comply with the
provisions of that section.
8.
In that regard the sentence may not exceed imprisonment for a period
of 3 months. The alternative fine payable is a fine the
amount of
which does not exceed an amount determined by the Minister by notice
in the
Gazette
from time to time. At the time the accused
appeared before the court a
quo,
the maximum fine
alternatively payable as a fine in lieu of 3 months of imprisonment
was R 1 500-00.
9.
In the "Commentary on the Criminal Procedure Act" by Du
Toit et al; at page 17 - 3; under the heading "Determination
of
amount for purposes of section 112 (1) (a) and (b)", the maximum
amount of fine payable as an alternative to imprisonment
is
indicated.
THE
ISSUE.
10.
In imposing a sentence of 6 months imprisonment and a payment of R 1
800-00 as an alternative fine, the court a
quo
exceeded both
the maximum period of imprisonment and the maximum fine payable as
determined in section 112 (1) (a) of the Criminal
Procedure Act. The
court is to determine whether or not the sentence meted out to the
accused as it is, is in accordance with the
law. Should the sentence
not be in accordance with the law, it has to be set aside.
11.
On the 30
th
of January 2013, through a Government Notice
62, published in Government Gazette 36111 the Minister determined
that where an accused
person pleads guilty in terms of section 112
(1) (a) of the Criminal Procedure Act, the maximum period of
imprisonment to be imposed
shall be 6 months and the maximum amount
alternatively payable as a fine shall be R5 000-00. According to the
reading of the charge
sheet in this case, the theft of which the
accused was convicted was allegedly committed on the 23
rd
of November 2010.
12.
At the time the accused appeared before the court a
quo
the
maximum period of imprisonment the court could impose was 3 months
whereas the amount to be imposed as an alternative fine in
terms of
section 112 (1) (a) of the Criminal Procedure Act, was R 1 500-00. It
is clear that in imposing a fine of R 1 800-00 upon
the accused,
failure of which the accused was to serve a period of imprisonment
over 6 months, the court a
quo
exceeded the maximum sentence
it was entitled to impose as determined in terms of section 112 (1)
(a) of the Criminal Procedure
Act.
13.
The latest determination by the Minister through the Government
notice is dated the 30
th
of January 2013. This was after
the date of the commission of the offence. For those reasons the
sentence meted out to the accused
by the court a
quo
is not in
accordance with the law.
14.
Nothing is wrong with the conviction of the accused. However by
virtue of its failure to comply with the provisions of section
112
(1) (a) of the Criminal Procedure Act, the sentence meted out to the
accused as it stands is not compliant with the provisions
of the
relevant section. For that reason, taking into consideration the
mitigating and aggravating factors prevailing, the sentence
meted out
to the accused by the court a
quo
stands to be set aside.
15.
In the result the following order is made:
ORDER.
(1). The conviction by
the court a
quo
is upheld.
(2). The sentence meted
out to the accused by the court
a quo
is set aside and is
substituted by the following:
2.1.
The accused is sentenced to undergo 3 months of imprisonment or to
pay a fine of R 1 500-00. The whole sentence is suspended
for a
period of 3 years on condition that the accused is not found guilty
of a similar offence, committed during the period of
suspension.
_______________________
T.
A. Maumela.
Judge
of the High Court of South Africa.
I
agree.
_______________________
S.
P. Mothle
Judge
of the High Court of South Africa.
[1]
2012 (1) SACR 8
(FB), at paragraph [6].