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[2016] ZAGPPHC 1005
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S v Khumalo (A804/16) [2016] ZAGPPHC 1005 (24 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
A804/16
24/11/2106
District:
STILFONTEIN
High
Court Ref No: 208/16
Magistrate
Serial No: 01/2016
Review
Case No: 51/249
THE
STATE
and
STANDFORD
TSHEPO KHUMALO
RESPONDENT
REVIEW
JUDGMENT
NV
KHUMALO, J:
[1]
This matter came before me on special review in terms of Section 304
(4) of
the Criminal Procedure Act 51 of 1977
("the Act"). The accused was indicted and convicted in the
Stilfontein Magistrate
Court for theft of a battery and fittings from
a motor vehicle. He was, according to the record of proceedings
sentenced as follows:
"fined R8 000.00 (Eight Thousand Rand) or
Eight Months
Imprisonment".
[2]
The sentence followed after the accused had informed the court a quo,
in mitigation of sentence that he did not finish school,
only went as
far as Grade 10. He has just come out of prison. He is unmarried and
has no children. He is unemployed and stays with
his mother who
supports him. His father is somewhere in Gauteng. He has money for
the fine.
[3]
The trial Magistrate did not ask the accused how much he
was going to be able to pay and where he was going to get money, even
though
it was apparent that he personally did not have the money.
Accused has a previous conviction for housebreaking with intent to
steal
and theft for which he served a sentence of 3 years
imprisonment and had just been released from prison in 2014. A year
later he
was arrested for theft being linked to the matter by
fingerprints whilst arrested for another theft case matter that is
pending
in Klerksdorp Magistrate
Court.
[4]
It is trite that when sentencing the accused the
sentence imposed must affect him personally as the offender,
punishment being aimed
at him. Therefore the person of the accused
(his personal circumstances) must be specifically carefully
considered. It was therefore
of paramount importance for the court a
quo to have conducted a proper investigation as to the accused's
ability to pay the fine
before it imposed a sentence with an option
for a fine. The court is expected to play a more active role taking
the initiative
to ask the relevant questions as much as it is
necessary for it to do so; see
Rammoko v
Director of Public Prosecutions
2003 (1) SACR
200
(SCA) at 205d-i). More so in this matter when the accused was not
represented. It is also assumed that the sentencing officer
considered
a fine with an intention to give the accused person an
opportunity to avoid incarceration, otherwise any contrary intention
would
result in the unfair, cruel, inhuman and degrading treatment or
punishment of the accused, which is contrary to the constitution.
[5]
As far as the conduct of the overall proceedings are
concerned they were in accordance with the fair administration of
justice except
for the part of the sentencing that referred to a fine
as it was based on contradictory information that was not clarified
by the
Magistrate. It therefore cannot be said it was based on the
Accused's ability to pay the fine.
[6]
On the other hand, since the appropriate way was to
impose an imprisonment sentence
only
without
an option of a fine, as
confirmed
by the National
Director
of Public Prosecutions (" NDPP"), a sentence
considered harsher, the imposition of the fine although unfair, did
not as
much prejudice the accused. Also since the removal of the
option of the fine would result or amount to equivalent of imposing a
harsher or a more severe sentence, it is in the interest of justice
to let the sentence stand, notwithstanding the shortcomings
identified in the sentencing proceedings; see S v Morris
1992 (2)
SACR 365
(C). A review court cannot increase or render more onerous
either the penalty or the conditions of suspension. The reason of the
review is to protect the accused, the removal of the fine does not
put him in a better position.
[7]
With regard to the imposition of an imprisonment
sentence only, the NDPP conceded that it would be prejudicial to the
accused.
[8]
In respect of the conviction I am satisfied that it was
in order and in accordance with the applicable section. The sentence
imposed
however although incompetent and not in accordance with the
fair administration of justice due to the imposition of an option of
a fine not properly determined will not be set aside since the
correct formulation of the sentence by the reviewing court will
have
unintentional results of prejudicing the accused or result in more
onerous conditions (S
v Colliard
2007
(1) SACR 522
(W).
[9]
I therefore find it apposite and in the interest of
justice to leave the sentence as it is. Under the circumstances the
absence
of the magistrate's comment is not fatal to the proceedings.
[10]
Under the circumstances I make the following order:
[10.1] The proceedings in
the court a quo are confirmed both conviction and sentence upheld.
N
V KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
I
concur
D
S MOLEFE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA