About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 109
|
|
S v Phakathi (A155/15) [2015] ZAGPPHC 109 (5 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
HIGH COURT REF NO:
814/2014
REVIEW CASE NO: MR
37/2014
DATE: 5 MARCH 2015
THE STATE
VS
BONGANI
PHAKATHI
.........................................................................................
ACCUSED
SPECIAL REVIEW
JUDGMENT
TEFFO, J
1] On 14 March 2014,
the accused, a 33 year old male, pleaded guilty in terms of
section
112(1)(a) of Act 51 of 1977(the Criminal Procedure Act)
in the
Magistrate’s court, Volksrust, to a charge of theft. He was
convicted and sentenced to pay a fine of R500,00 or serve
a period of
30 days imprisonment. A further sentence of 18 months imprisonment
was wholly suspended for a period of five years.
2] The matter was
brought to me on special review after the Magistrate had realized
during the checking process of finalised cases
that the Magistrate
who presided over the matter’s interpretation of sentencing in
terms of section
112(1)(a) of the Criminal Procedure Act
was
not in accordance with the law.
3] I referred the
matter to the office of the National Director of Public Prosecutions
(NDPP) for their comment. The comments were
received and noted.
4]
Section 112(1
)(a) of the Criminal Procedure Act
reads as follows:
“
1.
Where an accused at summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on the
charge and the prosecution accepts the plea:
a) The presiding
Judge, regional Magistrate or Magistrate may, if he is of the opinion
that the offences do not merit punishment
of imprisonment or any
other form of detention without an option of a fine or a fine
exceeding the amount determined by the Minister
from time to time in
the government gazette, convict the accused in respect of the offence
to which he or she has pleaded guilty
on his or her plea of guilty
only and;
(i) impose any
competent sentence other than imprisonment or any other form of
detention without the option of a fine or to a fine
exceeding the
amount determined by the Minister from time to time by notice in the
Gazette, or;
(ii) deal with
the accused in accordance with the law. ’’
5] From the wording
of the provisions of section 112(1)(a) of the Criminal Procedure Act
it is clear that the imposition by the
magistrate of a further
sentence of 18 months imprisonment which sentence was wholly
suspended for a period of five years is in
direct conflict with the
section. I am of the view that part of the sentence is not in
accordance with the law, it is irregular
and stands to be set aside.
6]
After carefully considering the matter and the record of the
proceedings, I do not find it necessary to remit the matter to the
court
a quo
for
sentence. I am satisfied that the appropriate sentence under the
circumstances is a fine of R500.00 or imprisonment for a period
of 30
days.
7] I therefore
propose the following order:
a)
The sentence of 18 months imprisonment imposed by the court
a
quo
and
suspended for five years is set aside;
b) The accused is
sentenced to pay a fine of R500,00 or serve a period of 30 days
imprisonment.
M J TEFFO
JUDGE OF THE HIGH
COURT
(NORTH GAUTENG
DIVISION, PRETORIA)
I agree
C PRETORIUS
JUDGE OF THE HIGH
COURT
(NORTH GAUTENG
DIVISION, PRETORIA)
And it is so
ordered.