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[2015] ZAGPPHC 355
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S v Ncube (A322/15) [2015] ZAGPPHC 355 (19 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NUMBER: A322/15
DATE:
19 MAY 2015
NOT
REPORTABLE
NOT
OFINTEREST TO OTHER JUDGES
HIGH COURT REFERENCE
NO: 207/15
MAGISTRATE'S SERIAL
NO: 07/2015
MAGISTRATE'S CASE
NO: T557/2009
JUDGE’S
CHAMBERS
HIGH COURT
GAUTENG DIVISION
PRIVATE BAG 442
PRETORIA
0001
MAGISTRATES COURT:
THABAZIMBI
PRIVATE BAG X 535
THABAZIMBI
0380
05 May 2015
In the matter
between:
THE STATE
and
CHARITY NCUBE
CORAM:
HUGHES
J
et
TLHAPI
J
SPECIAL REVIEW
JUDGEMENT
HUGHES J
1. This is a special
review in terms of section 304(4) of the Criminal Procedure Act 51 of
1977 (“the Act”) in that
the presiding officer of the
lower court imposed a sentence beyond the jurisdiction prescribed by
section 92(1) (a) of the Magistrate’s
Court Act 32 of 1944.
2. Charity Ncube,
the accused, was charged with theft. She elected to conduct her own
defence and pleaded guilty to theft of clothing
from Pep Stores
valued at R963.00.
3. The presiding
officer conducted an enquiry to confirm her guilty plea. She was duly
pronounced guilty as charged.
4. It transpires
that the offence was committed on 15 September 2009. Further, that
the delay in prosecuting the matter is as a
result of the accused
having failed to return to court after the matter was postponed. A
warrant of arrest was issued and authorized.
She appeared in court on
16 March 2015 as a result of the aforesaid warrant.
5. Both the accused
and the prosecution presented mitigating factors to the presiding
officer after the guilty verdict. The accused
also confirmed the
eleven previous convictions of theft for the period 2008 to 2014
proven by the prosecution. Notably, none of
her previous convictions
attracted direct imprisonment without an option of a fine and in all
instances she paid the fine.
6. It is relevant to
note that the prosecution, taking into account the circumstances of
the accused in relation to this particular
case, sought the lower
court to impose a sentence of three years direct imprisonment without
an option of a fine.
7. The factors
submitted by the accused in mitigation are merely general in nature
in that she was a twenty seven year old single
mother of two children
whom were in the care of her sister. She was self-employed earning an
income of R2000.00 per month. On the
day of the commission of the
theft she submitted that she stole the clothes from Pep Stores
because she was “short of money”.
8. In terms of
section 275(1) of the Act this court may after consideration of the
record vary, add to, or remit to that lower court
to pass sentence
afresh. The sentence imposed by the presiding officer in the lower
court of “six years imprisonment half
of which is wholly
suspended for five years on condition that the accused is not
convicted of a similar offence” is clearly
beyond the
jurisdiction of the lower court. Thus, in terms of section 275(1)
this matter is duly referred back to the presiding
officer who was
seized with the matter to sentence the accused afresh.
9. In the
circumstances I make the following order:
9.1 The sentence
imposed by the presiding officer of six years imprisonment half of
which is wholly suspended for five years on
condition that the
accused is not convicted of a similar offence, is set aside and in
terms of section 275(1) of the Act is remitted
to the presiding
officer for sentencing.
W. Hughes
Judge of the High
Court
I concur and it is
so ordered:
V. V. Tlhapi
Judge of the High
Court