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[2016] ZAGPPHC 1199
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S v Mangaliso (A792/16) [2016] ZAGPPHC 1199 (15 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 332/16
Date:
15/11/2016
A792/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
The
State
and
LEBOGANG ISAAC MANGALISO
JUDGMENT
Tuchten
J
:
1.
This case was sent on special review by the regional magistrate
sitting at Oberholzer. The accused is facing a charge of robbery
under case no. SH17/16. The case has not yet been finalised.
2.
The regional magistrate reports that an attorney who came on record
after several witnesses had testified requested that the
case be sent
on review on the ground that the rights of the accused regarding
prescribed sentences had not been explained to him.
The accused was 9
February 2016 admitted to bail in the sum of R1 000.
3.
According to the charge sheet read with its annexures, the accused
was charged with assaulting the complainant, Ms Dlamini, by
pushing
and kicking her, intimidating Ms Dlamini (it seems by the utterance
of certain words) and robbing her of certain alleged
property
described as "ANC DATA".
4.
The charge sheet in fact refers in its heading to Act 105 of 1977,
presumably an error. Section 51(2) of the Criminal Law Amendment
Act,
105 of 19 7 provides for prescribed sentences for certain serious
offences. The submission of the attorney for the accused
is that the
heading to the charge of robbery places the accused at risk in
relation to a prescribed sentence. If that were in this
case the
correct position, the only possible such prescribed sentence
applicable would be the sentence imposed after a conviction
for
robbery with aggravated circumstances as defined in
s1
of the
Criminal Procedure Act, 51 of 1977
.
5.
However, as the regional magistrate correctly points out, there is no
reference in the body of the charge to any facts which
if proved
would constitute aggravated circumstances. The charge was thus,
despite the reference to a statute, one of what is known
as common
robbery. The offence of robbery without aggravating circumstances (ie
common robbery) is not one which attracts a prescribed
sentence.
There were thus no possible such sentences to explain to the accused.
The prosecutor would do well to apply for the deletion
from the
charge of robbery of the words "(read with the provisions of
s
51(2)
of the
Criminal Law Amendment Act, 105 of 1997
)".
Furthermore, the courts are slow to intervene on review in
uncompleted criminal cases because the accused might be acquitted
or
sentenced only on the basis of its "normal" jurisdiction.
6.
Finally, the remedy for an omission to explain rights is, as the
regional magistrate once again points out, that the accused
if
convicted is liable only to be sentenced by the court in accordance
with its normal jurisdiction in that regard.
7.
For all these reasons, I see no good ground on which this court
should intervene at this stage in this uncompleted criminal trial.
8.
I make the following order:
1. The court declines to
exercise its special review jurisdiction at this stage.
2. The case is remitted
to the regional court, Oberholzer for the continuation and completion
of the trial of the accused.
NB
TUCHTEN
JUDGE
OF THE HIGH COURT
10
NOVEMBER 2016
I
agree.
DS
FOURIE
JUDGE
OF THE HIGH COURT
10
NOVEMBER 2016