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[2014] ZAFSHC 43
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S v Van Wyk (35/2014) [2014] ZAFSHC 43 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No: 35/2014
In the
review between:
THE
STATE
and
PIETER
VAN WYK
CORAM:
KRUGER et NAIDOO, JJ
JUDGMENT:
NAIDOO, J
DELIVERED
ON:
20 MARCH 2014
REVIEW JUDGMENT
[1]
This is a special review under
section 304(4)
of the
Criminal
Procedure Act 51 of 1977
. The accused pleaded guilty to a charge of
theft (shoplifting) of a pair of Puma takkies worth R499,95 in the
district court and
was convicted under
section 112(1)(a).
Thereupon
the magistrate passed the following sentence:
“
6 months imprisonment wholly suspended for 3
years in that the accused is never found guilty of a similar crime.”
[2] The
sentence is a text book example of how a sentence should not read.
The maximum sentence a court can pass under
section 112(1)(a)
is a fine of R5 000 to which alternative imprisonment can be coupled.
Under
section 112(1)(a)
the accused is convicted on the plea of
guilty alone. Under
section 112(1)(b)
the presiding officer
questions the accused to make sure that the accused admits all the
elements of the offence. A provision
similar to
section
112(1)(a)
did not exist under the previous Criminal Procedure Act 56
of 1955. Even if the accused pleaded guilty, the commission of
the offence still had to be proved, there had to be evidence
aliund
e,
as it was put. The 1977 Criminal Procedure Act created the
possibility that a person can be convicted on a plea of guilty
alone,
without any questioning, but then the sentencing options are limited.
Section 112(1)(a), where there is no questioning
by the
presiding officer, is aimed mainly at the case where the accused
virtually stands with the fine money ready, almost similar
to an
admission of guilt situation, and the accused does not want to waste
the court’s time and wishes to get the case over
and done with.
Section 112(1)(a) is not intended for lazy or incompetent
presiding officers who do not want to, or are unable
to, question the
accused under section 112(1)(b) to determine whether the accused
admits all the elements of the offence. Section
112(1)(a) is
intended for minor cases. Presiding officers should use section
112(1)(a) only where the offence is of a minor nature,
in the nature
of a “petty”. Shoplifting is a serious offence, and
there could be cases where first offenders
are given sentences of
imprisonment. The charge in this case was not one which should
have been dealt with under section
112(1)(a). The accused
should have been questioned under section 112(1)(b). It is also
not clear why the prosecutor
did not direct the presiding officer’s
attention to the limited sentencing options under section 112(1)(a).
[3] The
sentence offends against the provisions of the Criminal Procedure Act
and against standard and long-standing rules:
(i) Firstly, only a fine of up to R5 000 can be imposed
under section 112(1)(a), to which alternative imprisonment can be
added.
A sentence of imprisonment, even if suspended, without the
option of a fine, is not competent under section 112(1)(a).
(ii) Where the court imposes a fine with alternative
imprisonment the fine should always be the first option (in this case
the court
apparently did not even consider a fine).
(iii) Conditions of suspension must be clear. In
the case of a conviction of theft the condition of suspension will
normally
be that the accused is not convicted of theft committed
during the period of suspension. The words “similar
offence”
are vague, and should be avoided (
S v Mothobi
1972 (3) SA 841
(O)).
(iv) The words “in that” are unclear, and do
not convey a condition. The condition of suspension should be
that
the accused is not convicted of a named offence within a stated
period committed in the period of suspension.
(v) The maximum period of suspension which a court can
order is five years.
[4] The
accused should have been questioned in terms of section 112(1)(b)
because shoplifting is not a trifling offence. The
conviction and the sentence are incompetent.
[6] In
our view these proceedings should simply be set aside.
ORDER
1. The conviction and sentence are set aside.
S. NAIDOO, J
I
agree.
A.
KRUGER, J