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[2015] ZAGPPHC 13
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S v Chakoma (A18/15) [2015] ZAGPPHC 13 (22 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date:
22 January 2015
Case
number: A18/15
Not
reportable
Not
of interest to other judges
Review Number: A
774/2014
In the matter
between:
THE STATE
and
WILLENGTON
CHAKOMA
REVIEW JUDGMENT
KUBUSHI, J
[1] The accused was
convicted in the magistrate’s court, Piet Retief, of the
offence of contravening
s 2
(1) of the
Counterfeit Goods Act 37 of
1997
: Counterfeit goods: Prohibited acts/conduct. He was sentenced
‘to pay a fine of R24 000 (Twenty Four Thousand Rand) or in
default of payment to undergo 48 (forty eight) months imprisonment.
In terms of
s 35
(2) of the
Criminal Procedure Act 51 of 1977
the
counterfeit CD’s are declared forfeited to the State for
destruction. In terms of
s 103
of the
Firearms Control Act 60 of 2000
the accused is declared unfit to possess a firearm.’
[2] The penalty
clause in terms of
s 19
of the
Counterfeit Goods Act 37 of 1997
specifically states that imprisonment period in respect of the above
mentioned offence may not exceed three years. It is on this
basis
that this matter was referred on special review by the chief
magistrate with a request that the proceedings be set aside
since
they were not in accordance with justice.
[3] The matter was
further referred to the National Director of Public Prosecutions
(NDPP) by the reviewing judge for their comment.
The NDPP does not
agree with the recommendation by the chief magistrate in that the
error does not constitute a miscarriage of
justice. The NDPP
suggests, as such, that the sentence be set aside and replaced with
an appropriate sentence which is R24 000
or three years imprisonment.
I am in agreement with the NDPP’s recommendation.
[4]
Review proceedings are in essence only a consideration of whether
real and substantial justice had been done rather than whether
every
provision of strict law has been complied with. As it has been said,
the function of a review court is to determine whether
the
proceedings in the lower court were in accordance with justice. The
mere fact that some procedural detail may have been overlooked
or
imperfectly complied with by the trial court does not necessarily
entail the consequence that a failure of justice occurred.
1
[5] It is, thus, my
view that the proceedings in this instance are in accordance with
justice. The imperfection in the sentence
does not entail the
consequences that a failure of justice occurred. The mistake by the
trial court in imposing imprisonment for
48 months instead of three
years constitutes only an irregularity which can be cured by
correcting the sentence. And, except for
the mistake the sentence
itself is appropriate and should be upheld.
[6] As this is a
technical oversight it is unnecessary to remit this matter to the
trial court and instead this court is better
positioned to correct
such error and reword the sentence appropriately.
[7] In the
circumstances I consider that the following order should issue:
7.1 The conviction
is confirmed.
7.2 The sentence
imposed on 29 July 2014 is hereby set aside and substituted with the
following:
“
A
fine of Twenty Four Thousand Rand (R24 000) or in default of payment
to undergo three (3) years imprisonment.
In terms of
section
35(2)
of Act 51 of 1977 the counterfeit discs are declared forfeit to
the state to be destroyed.
In terms of section
103 of Act 60 of 2000 the accused is declared unfit to possess a
firearm.”
E.M. KUBUSHI, J
I concur (and it is
so ordered).
A.M.L. PHATUDI, J
1
SvHlongwa
(7326/2001)