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[2015] ZAFSHC 137
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S v Phosi (95/2015) [2015] ZAFSHC 137 (16 July 2015)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Review
No. : 95/2015
In
the special review between:-
THE
STATE
and
PHOSI
THABISI
CORAM:
MOCUMIE, J
et
MIA AJ
JUDGMENT
BY:
MOCUMIE, J
DELIVERED
ON:
16 JULY 2015
[1]
This is a special review in terms of Section 304 of the
Criminal Procedure Act 51 of 1977 (the CPA). The accused
appeared before the Magistrate court, Ficksburg, on two charges,
Count 1, contravention of s41 (1) read with ss (2)
of the
CPA, furnishing false information to a police officer. Count 2,
contravention of
s49
(1) of the
Immigration Act 13 of 2002
, entering
the Republic of South Africa without a valid passport. The accused
was found guilty on both counts. In respect of count
1, he was
sentenced to 'six months imprisonment without an option of a fine.'
In respect of count 2, he was sentenced to 'R 1000
or six months
imprisonment.'
[2]
The Magistrate submitted this matter on
special review because he exceeded
the prescribed
statutory penalty in respect of count 1. The relevant
section of the CPA,
s41
(2). provides that upon conviction, the
accused shall be sentenced to a fine
not exceeding
R300.00 or imprisonment for a
period not exceeding three months
[3]
It
is
trite
that
once
a
court
has
disposed of
a
matter
finally it
cannot
correct
its
own
judgment
and order.
This
is
derived from the
long
standing
principle
of
functus
officio.
The
Supreme
Court
of
Appeal in
De
Villiers
NO
and
another
v
BOE
Bank
Ltd
[1]
re-affirmed
this long
standing principle. The court
further
highlighted a
few
exceptions under which
a court
may alter
its own
order
or
judgments.
'The first
is that the
principal
judgment
or
order
may
be
supplemented
in
respect
of
accessory
or
consequential
matters
(such
as
costs).The
second
exception is
where on
a
proper
interpretation,
the
meaning
of
an order
remains
obscure,
ambiguous
or
otherwise
uncertain.
The court
may
then
clarify it
so
as
to
give
effect
to its
true
intention, provided it
does not
thereby
alter the
sense
and
substance
of
the
judgment
or
order
.
A third
instance
in which
a court
may correct
an order
is where
a clerical,
arithmetical
or other
error
exists in
its
judgment.
The final
exception
is where
counsel
has argued
the merits
and
not the
costs
of
a
case
but the
court,
in granting
judgment
also
makes an
order
concerning
costs
.
.'
[2]
In the
event
that
a
wrong
sentence
is
passed
by
error,
the
court
may, before
or
immediately
after
it
is
recorded,
amend
the
sentence.
[3]
This section is
similar
to
what is
provided
under
Rule
42
of
the Rules
of Court
applicable
in
respect of High Courts. The word
‘immediately’
under
s298
is not defined nor is there any guidance to Magistrates in the
same situation as in this case on the word. Generally, as occurred
in
the present matter, the mistake occurred on 19 May 2015, and it only
came to the Magistrate's attention after 19 May, he is
bound to refer
the matter to the High court to set it aside and correct it in
whichever way it deems fit. This has been the case
also because the
Magistrate is a creature of statute and cannot go beyond the
provisions of the empowering legislation.
Neither
does the Magistrate court
have inherent jurisdiction to act otherwise
than provided by
the empowering legislation, unlike the higher courts.
[5]Although
s298
gives the Magistrate almost the same parameters to correct its
own judgment and order as
Rule 42
gives a Judge in the High court, in
practice there is no guidance on the period envisaged in the word
'immediately'. As in this
case, assuming that the Magistrate only
realised his mistake on 27 May 2015, as per his covering letter, it
would mean 8 days had
already passed and he could not correct it on
the simple basis that the prejudice the CPA seeks to prevent had
already been set
in motion; and the accused's right to a fair trial
had already been adversely affected. The High court is then the only
court that
can correct this error. 8298 continues to serve an
important role. It serves to safe guard the fair trial rights of an
undefended
accused. It further serves as a form of checks and
balances for undefended accused persons. This mechanism is all that
an undefended
accused has against all possible forms of atrocities
which could inadvertently arise.
[6]
Having said that, I am in total agreement that the error is indeed
one that must be corrected as proposed by the Magistrate
as I do
hereafter. Not much of the accused's personal circumstances were
placed on record. However, the following factors can be
discerned
from the charge sheet and the questions posed by the Magistrate in
terms of
s112:
The accused was […..] years of age at the time
of the commission of this offence. He was employed. Thus he could, in
all
probability, afford to pay a fine or at least raise money to pay
a fine in order to keep his employment and not add to the number
of
unemployed citizens of this country and likewise in the neighbouring
countries. He is a first offender. He has two dependant
children.
[7]
Taking into account all those favourable factors, it would have been
prudent for the Magistrate to have considered an option
of a fine as
well on this count as he did in respect of count 2. Such sentence
would give the accused an opportunity to continue
to work for
himself, his children and other dependants. This is so because there
is no evidence that he entered the Republic to
commit any serious
crime. Thus he cannot be sacrificed at the expense of those who do
so. The sentence in respect of count 1 ought
to be set aside and
substituted with one which is balanced and just.
[8]
In the result the following order is granted.
ORDER
1.
The sentence in respect of count 1 is set aside and substituted with
the following:
'The accused is sentenced
to R300.00 or 3 (three) months imprisonment.'
2.
The conviction and sentence in respect of count 2 are confirmed.
______________
B.C.
MOCUMIE, J
I
concur.
______________
S.C.
MIA
[1]
De
Villiers
NO and another
v
BOE Bank
Ltd
[2004]
1 All SA
481
(SCA),2004
(3) SA 459
(SCA).
[2]
De
Villiers
above.
[3]
Section 298
of the
Criminal
Procedure
Act 51 of
1977
.