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[2015] ZAGPPHC 494
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S v Chirindze (234/15 , A420/15) [2015] ZAGPPHC 494 (25 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 234/15
A420/15
DATE: 25 JUNE 2015
In the matter between:
THE STATE
And
GILBERT FERNANDO CHIRINDZE
High Court reference number: 210/15
Magistrate’s serial number:
11/15
REVIEW JUDGMENT
Baqwa J
[1] This matter has been brought by way
of special review in terms of Section 302 of The Criminal Procedure
Act 51 of 1997 after
it was discovered that the accused was
incorrectly sentenced after being convicted.
[2] The office of the Director of
Prosecutions has been requested to comment and I have received and
taken note of their comments
regarding the matter.
[3] The accused was convicted in the
Magistrate’s Court, Barberton for contravention of Section 2
(1) of Act 37 of 1997 (the
Act). He was sentenced as follows:
“Accused is fined R6 600.00 (six
thousand six hundred rand) or 6 (six) months imprisonment and a
further R6 600.00 (six thousand
six hundred rand) or 6 (six) months
imprisonment which is wholly suspended for a period of 5 (five) years
on condition that the
accused is not convicted of contravening
Section 2 (2) of Act 37 of 1997 committed during the period of
suspension. Under Section
20 (1) of Act 37 of 1997 the 19 DVD’s
and the CD’s are forfeited to the State.”
[4] On the J4 sheet the conviction is
captured as follows:
“Convicted of the offence of
contravening the provisions of Section 2 (1) read with
Sections 1
,
2
(2),
10
,
19
and
20
of the
Counterfeit Goods Act 37 of 1997
and read
with the
Trade Marks Act 194 of 1993
and the
Copyright Act 98 of
1978
” which is also how the charge sheet is framed.
[5] The fact of the matter, however, is
that the offence of dealing in counterfeit goods is created by
Sections 2 (1) and 2 (2)
of the Act.
[6] Upon reading the charge sheet and
conviction it would therefore seem that the trial court erred in
convicting the accused in
the manner referred to above.
[7] It would however appear from the
reading of the Section 112 plea (Act 51 1977) of the accused that he
did intend to plead guilty
to the offence provided for in Section 2
of Act 37 of 1997 read with the additional identified sections of the
Act and the provisions
of Act 98 of 1978.
[8] Bearing in mind that the essence of
review proceedings is the consideration of whether real and
substantial prejudice has been
visited upon an accused person, it
would appear that in casu, despite the apparent error of the
magistrate, such error is only
of a technical nature.
See S v Hlongwa
2002 (2) SACR 37
(T) at
para 63.
[9] The magistrate correctly stated
that all the elements of the offence had been admitted by the
accused. In the circumstances,
the conviction was correct.
[10] The penalty clause in the Act as
contained in Section 19 provides that:
“(1) Any person convicted of an
offence referred to in Section 2 (2), will be punishable -
(a) in the case of a first conviction,
with a fine, in respect of each article or item involved in the
particular act of dealing
in counterfeit goods to which the offence
relates, that may not exceed R5 000.00 per article or item, or with
imprisonment for
a period that may not exceed three years, or with
both such a fine and such term of imprisonment...”
[11] What is apparent from the Section
112 statement of the accused is that the CD’s and DVD’s
were possessed for purposes
of sale. The trial court therefore
correctly determined that the appropriate sentence was a term of
imprisonment coupled with the
option of a fine.
[12] What is not clear from the record
is why a fine in the amount of R6 600.00 was imposed. Whatever the
reasoning was, what is
patently clear is that considering that the
common cause value of the goods found in possession of the accused
was R220.00, the
fine was inappropriate.
[13] The personal circumstances of the
accused are as follows:
He does odd jobs and has no steady
source of income. His approximate earnings are R1000.00 per month. He
is a first offender. He
has two minor children that he maintains. His
legal representative indicated that the accused could afford to pay a
fine not exceeding
R500.00 or a suspended sentence.
[14] The circumstances of the accused
are such that the trial court ought to have considered the accused’s
ability to pay
the fine in instalments.
See S v Gqobozo
2005 (1) SACR 589.
[15] Further, the trial court ought to
have considered a fine that was within the reach of the accused. In S
v Sithole and Another
1972 (2) SA 67
(AD) at G
- H the following was said:
“When a court has decided that a
convicted person ought to be afforded the opportunity of staying out
of jail by giving him
the option of paying a fine, it should not
impose a fine which to its knowledge or belief is utterly beyond the
means of such person
to pay. When it has been decided to give the
convicted person the option of paying a fine, there should be some
purposeful enquiry
into his means in order to enable the court to
make a proper assessment of what an appropriate fine, in the
circumstances, would
be"
[16] In casu, it would appear that the
trial court misdirected itself by not properly weighing the
well-known triad, namely, the
crime, the criminal and the interests
of society.
See S v Zinn
1969 (2) SA 537
(A).
[17] In the result I propose that the
following order be made:
17.1 The sentence of the Magistrate,
Barberton is set aside and substituted with the following:
17.2 The accused is sentenced to pay a
fine of R3 000.00 or undergo a term of 3 months imprisonment which is
wholly suspended for
5 years on condition that the accused is not
convicted of contravening Section 2 (2) of Act 37 of 1997 committed
during the period
of suspension.
SAM BAQWA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
M W MSIMEKI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENJJ DIVISION, PRETORIA