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[2015] ZAGPPHC 490
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S v Kodisang (A421/15) [2015] ZAGPPHC 490 (20 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
High Court Ref.:
236/2015
Springs Magistrate Court
Serial No.: 16/2015
CASE NO: A421/15
Date: 20 JUNE 2015
THE STATE
v
TEDDY SIMON
KODISANG
...............................................................................................
ACCUSED
REVIEW JUDGMENT
THOBANE AJ,
[1] This matter was referred for
special review in terms of
section 304
(4) of the
Criminal Procedure
Act 51 of 1977
. It appears as if the Acting Senior Magistrate Mrs.
Mosaka, identified a sentencing discrepancy and referred the matter
to the
magistrate that dealt with the matter, Ms. Ngubeni, for her
comments.
BACKGROUND
[2] The accused appeared in the Springs
Magistrate Court held at KwaThema on a charge of fraud. He enjoyed
legal representation
at the trial. He pleaded guilt to the charge of
fraud and was accordingly found guilty.
[3] The magistrate considered evidence
in mitigation as well as aggravation and in the end sentenced the
accused to 36 months imprisonment.
The magistrate further made the
following orders;
1. In terms of
Section 103
(1) Act
60/2000, the accused is declared unfit to possess a firearm,
2. In terms of
section 276
(B)(1) the
Court orders that the accused shall not be placed on parole for the
36 months period.
[4] Reasons for the special review as
articulated by the Acting Senior Magistrate, are encapsulated in the
following statement*'
" It is clear from the mentioned
section that the Presiding Officer erred by making an order that the
accused not be placed
on parole for the duration of his imprisonment
in contravention of
section 27
IB (l)(b) ofAct 51 of 1977"
[5] The trial Magistrate conceded that
her condition with regard to parole was incompetent. Her comments in
this regard were as
follows;
"The (sic) was an error in the
court order regarding the non-parole sentence condition imposed, in
that there was an omission
of the following words "for the two
thirds of the 36 months imprisonment” that is the period within
which the accused
should not be placed on parole; as reflected now it
is for the duration of the entire sentence.
That was an omission on my part - which
renders that condition incompetent
The above mentioned court order made on
18/10/2013-
Kindly have same rectified - I did not
realize that until the matter was brought to my attention by your
office. This will not happen
in future."
THE LAW
[6] The Magistrate purported to act in
terms of
section 276
(B) (1) of the
Criminal Procedure Act 51 of
1977
, which provides as follows;
"276B Fixing of non-parole-period
(1) (a) If a court sentences a person
convicted of an offencc to imprisonment for a period of two years or
longer, the court may
as part of the sentence, fix a period during
which the person shall not be placed on parole.
(b) Such period shall be referred to as
the non-parole-period, and may not exceed two thirds of the term of
imprisonment imposed
or 25 years, whichever is the shorter."
ISSUES
[7] In my view two issues arise from
this review. The first being the omission by the Magistrate and
secondly, whether the order
in terms of
section 276
(B)(1) was
correctly made.
PROCEDURE
[8] According to the record of
proceedings, after the parties had addressed the Magistrate in both
mitigation and aggravation, she
proceeded with the imposition of
sentence. She dealt with the element of retribution and mentioned
prejudice real as well as potential,
which could have befallen the
employee, the store as well as the card owner, had the fraud
succeeded. The Magistrate further considered
the element of
deterrence. In this regard the Magistrate was of the view that a
wholly suspended sentence was inappropriate as
it would not
rehabilitate the accused. She further considered the SAP69 and
observed that the accused had used different names
on three different
occasion. She concluded that imposition of a wholly suspended
sentence would not be appropriate. The Magistrate
explained that she
had looked at
section 276
as an option, without explaining which
subsection thereof she had considered, but she was of the view that
in light of the fact
that the accused had a conviction which
appeared, according to the SAP69, to have been committed while he was
out on "parole
supervision”, accused needed to be treated
differently. This offense the Magistrate found, was a contravention
of a protection
order. The court then found that the accused would
neither abide by parole conditions nor conditions imposed in respect
of a suspended
sentence.
[9] The Magistrate thereafter proceeded
to impose a sentence of 36 months imprisonment. The Magistrate after
imposing the sentence
called on the parties to address her as to why
she should not fix in respect of the accused, in terms of
section
276(B)(1)
, a non-parole condition. On behalf of the accused it was
submitted that he suffers from tuberculosis for which he was taking
medication.
On behalf of the state it was submitted that the accused
would have access to medical personnel wherever he was kept. It was
further
submitted that the state was within its rights to approach
court and argue that the suspended sentences be put into operation.
The magistrate then proceeded to impose the following order;
"...that in terms of
section
276(B)(1)
the court orders that the accused shall not be places (sic)
on parole for the 36 months period".
[10] In my view the Magistrate
misdirected herself in many respects. Whether the imposition of the
non-parole order for the entire
sentence was a mistake is beside the
point. Such an order stands to be set aside.
10.1. The imposition of sentence is
entirely in the discretion of the trial court. Interference should be
limited to those instances
repeated in many a court decision. Vide: R
V MAPUMULO & OTHERS
1920 AD 56
AT 57 R V
HOLDER 1979(2) SA 70 (A) AT 77 TO 78, S
VRABIE 1975(4) SA 855 (A) AT 857 D-E. The nature and import thereof
is aptly encapsulated
in this dictum in S V JUTA
1988 (4) SA 962
(TK)
at 927 D-F where the court expressed itself as follows:
" it is true that the sentence is
pre-eminently a matter for the trial court, and it is, within the
limits of statutory provisions,
in the discretion of the presiding
officer. But that discretion is not an ordinary discretion, it is a
judicial discretion which
means that the discretion cannot be
exercised arbitrarily or whimsically. It is a discretion which is
bound by judicial precedent
and judicial authority.
10.2. The fact that the order of
non-parole covers the entire term of imprisonment is a misdirection.
On this point alone the order
stands to be set aside.
10.3. It is clear from the record that
the accused's legal representative as well as the prosecutor were
taken by surprise when
the Magistrate asked them to address her in
terms of
section 276(B)(1).
This is deduced from the fact that they
simply repeated portions of what they said in mitigation and
aggravation. Their address
therefore could not have assisted the
court in fact, it was not of any use as the Magistrate had already
heard the parties on the
points they were raising. Failure to afford
the parties a proper opportunity to address the court is a
misdirection. See S v Mthimkulu
2012 (2) SACR 89
(SCA).
10.4. The Magistrate did not advance
any reasons as to why she believed the imposition of a non parole
condition was necessary.
It was held to be both fair and a salutary
practice to advance reasons for an order or condition. See S v
lmmelman
1978 (3) SA 726
(A), where Corbett JA had the following to
say;
"It has been decided in this
Court, with reference to the verdict of the Court, that, although
there is no provision in the
Criminal Procedure Code for the delivery
of a judgment when a Judge sits alone or with assessors (when these
decisions were given
the alternative system of trial by jury still
obtained), in practice such a judgment is invariably given and that
it is clearly
in the interests of justice that it should be given
(see R v Majerero and Others
1948 (3) SA 1032
(A); R v Van dev Walt
1952 (4) SA 382
(A)). It seems to me that, with regard to the
sentence of the Court in cases where the trial Judge enjoys a
discretion, a statement
of the reasons which move him to impose the
sentence which he does also serve the interests of justice. The
absence of such reasons
may operate unfairly, as against both the
accused person and the State. ”
10.5. The approach to be adopted by the
sentencing court that wishes to impose the non-parole period is to
make a determination
as to whether exceptional circumstances are
present. The approach was spelled out in S v Stander 2
012 (1) SACR
537
(SCA), where the following was said by Snyders JA in paragraph
20;
" It also found, correctly in my
view, that exceptional circumstances cannot be spelled out in advance
in general terms, but
should be determined on the facts of each case.
These should be circumstances that are relevant to parole and not
only aggravating
factors of the crime comm itted, and a proper
evidential basis should be laid for a finding that such circumstances
exist”.
In casu the magistrate did not have
exceptional circumstances placed before her. It follows therefore
that making such an order
in the absence of such exceptional
circumstances was a misdirection.
[11] The proceedings were in accordance
with justice however, in view of the afore mentioned incidences of
misdirection, the sentence
must be revisited and considered afresh. I
am satisfied that the sentence of 36 months imprisonment is suitable
in the circumstances
of this case. The portion imposing the
non-parole condition must be set aside.
[12] I therefore make the following
order;
12.1. The conviction of the accused is
confirmed.
12.2. The sentence imposed is reviewed,
set aside and substituted with the following:
The accused is sentenced to thirty six
months imprisonment in terms of
section 276(l)(b)
of Act 51 of 1977.
10.3. The sentence is antedated to 18th
October 2013.
10.4. In terms of section 103(1) of Act
60 of 2000, the accused is declared unfit to possess a firearm.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
I aeree and it is so ordered
LEDWABA
JUDGE OF THE HIGH COURT