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[2014] ZAFSHC 133
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S v Mpharu (147/2014) [2014] ZAFSHC 133 (4 September 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No: 147/2014
In
the matter between:-
THE
STATE
and
THABISO
PETRUS MPHARU
CORAM:
JORDAAN, J
et
POHL, AJ
JUDGMENT
BY:
POHL,
AJ
DELIVERED
ON:
4
SEPTEMBER 2014
[1]
This is a special review in terms of Section 304 (4) of the Criminal
Procedure Act, Act 51 of 1977.
[2]
The accused in this matter had been charged on 23 June 2014 with
housebreaking with the intent to steal and theft. He was legally
represented and pleaded guilty to the charge and was duly convicted
after the application of Section 112 (2) of the Criminal Procedure
Act, Act 51 of 1977.
[3]
He was then sentenced as follows: 3 months imprisonment. No order was
made in terms of Section 103 (1) of Act 60 of 2000. The
magistrate
however went further and made an order that the accused would not be
eligible for parole. The magistrate thus invoked
the provisions of
Section 276B(1)(a) of the Criminal Procedure Act, Act 51 of 1977.
This Section reads as follows:
“
Fixing
of non-parole period
276B(1)(a)
if a court sentences a person convicted of an offence to imprisonment
for a period of 2 years or longer, the court may
as part of the
sentence, fix a period during which the person shall not be placed on
parole.”
[4]
The control magistrate, Bloemfontein, Magistrate Matshaya, who sent
this matter on special review, indicated that the Correctional
Centre
Head phoned the control magistrate reporting that the accused is due
for parole but cannot be released due to the fact that
the magistrate
that sentenced him invoked the provisions of 276B of Act 51 of 1977.
[5]
It is clear from the wording of Section 276B(1) that the court that
sentenced the accused was only allowed to invoke the provisions
of
Section 276B when a sentence of direct imprisonment for a minimum
period of 2 years were imposed. In this case the magistrate
imposed a
sentence of only 3 months imprisonment and therefor did not have the
power to fix a non-parollable period. The magistrate
thus committed
an irregularity which resulted in a failure of justice.
[6]
In the premises I would make the following order:
“
The
magistrate’s order invoking the provisions of Section 276B of
Act 51 of 1977 is set aside, otherwise the conviction and
sentence
are confirmed.”
_______________
L.
le R. POHL, AJ
I
agree and it is so ordered.
_______________
A
F JORDAAN, J