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2015
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[2015] ZAFSHC 189
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S v Madimabe (82/2015) [2015] ZAFSHC 189 (18 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Review
Number: 82/2015
In
the review between:-
THE
STATE
and
LUCKY
ALFRED MADIMABE (RAMOCHELA)
CORAM:
VAN ZYL,
J
et
NAIDOO, J
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
ON:
18 SEPTEMBER 2015
[1]
The accused was convicted on three charges of
housebreaking with the intent
to steal and theft. He was then
sentenced as follows:
"3
(three) imprisonment or R4 000,00 (four thousand rand) fine, half of
suspended for a period of 5 (five) years, on
condition that the
accused is not convicted of housebreaking with intent to steal
or theft, committed during the period of
suspension. No order is made
in terms of section 103(1) Act 60 of 2000" (sic)
[2]
The matter then served before Ebrahim, J on review.
She raised the following
query:
"The
sentence imposed is not clear and makes no sense."
[3]
The matter thereafter served before me. The
presiding acting
magistrate duly responded to the aforesaid
query by conceding that the wording of the sentence does not
read properly and
suggested an alternative formulation thereof.
[4]
However, from my perusal of the record it became evident that the
record was incomplete.
I then raised the following query:
"1.
Although my colleague Ebrahim, J raised a query regarding the
sentence, this matter was referred to me as the recess
duty Judge. I
have received the response regarding the sentence, thank you.
Unfortunately I have additional problems with
this matter.
2.
The record it totally incomplete. The record starts with the
introduction stating
that it is a partly heard matter, with record of
the evidence previously presented. From a reading
of the address
by the prosecutor and the judgment, it seems that the
record is lacking the evidence of the following witnesses:
2.1
Zamaia Ntsitungsa
2.2
Mamsi Mosala
2.3
Afordia Adams
2.4
Matthys Botha Ne!
3.
Please rectify/restructure the record to reflect the totality of the
proceedings."
[5]
The matter subsequently served before me again, this time with a
complete record of the
proceedings. I have perused the
said record and am satisfied that the convictions and the substance
of the imposed
sentence are in accordance with justice. However, it
is necessary for the formulation of the sentence to be rectified.
[6]
The following order is consequently made:
1.
The convictions of the accused are confirmed.
2.
The imposed sentence is set aside and substituted
by the following:
"Sentenced
to R4 000,00 (four thousand rand) or 3 (three) years imprisonment,
half of which is suspended for 5 (five) years
on condition that the
accused is not convicted of housebreaking with the
intent to steal and theft, or theft
committed during the period of
suspension.
No
order is made in terms of section 103(1) of Act 60 of 2000."
3.
The aforesaid sentence is to be considered to have been imposed on 29
April 2015.
_______________________
C
AN ZYL, J
I
concur.
______________________
S.
NAIDOO, J
/eb