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[2014] ZAFSHC 209
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S v Pheko (20/2095/2014) [2014] ZAFSHC 209 (4 December 2014)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. :
20/2095/2014
DATE: 04 DECEMBER 2014
In the review between:
THE STATE
Versus
ITUMELENG ELVIN PHEKO
CORAM: NAIDOO, J et TSATSI, AJ
JUDGMENT BY: TSATSI, AJ
DELIVERED ON: 04 DECEMBER 2014
TSATSI, AJ
[1] This is a special review against
the decision of the Magistrate in Bloemfontein, which came before us
in terms of section 304
(4) of the Criminal Procedure Act 51 of 1977
(“the Act”).The accused conducted his own defence.
[2] The accused was charged with
assault and pleaded guilty on 1 October 2014. He was convicted as
charged. The State requested
the Court to apply the provisions of
section 112 (1) (a) of the Act. As a result he was sentenced as
follows: Three months imprisonment
which sentence is wholly suspended
for a period of five (5) years on condition that the accused is not
convicted of common assault
committed during the period of
suspension.
[3] Section 112(a) (1) provides that:
“(1) Where an accused at a summary trial in any court pleads
guilty to the offence
charged, or to an offence of which he may be
convicted on the charge and the prosecutor accepts that plea- (a) the
presiding judge,
regional magistrate or magistrate may, if he or she
is of the opinion that the offence does not merit punishment of
imprisonment
or any other form of detention without the option of a
fine or of a fine exceeding the amount13* determined by the Minister
from
time to time by notice in the Gazette, convict the accused in
respect of the offence to which he or she has pleaded guilty on his
or her plea of guilty only and- (i) impose any competent sentence,
other than imprisonment or any
other form of detention without the
option of a fine or a fine exceeding the amount determined by the
Minister from time to time
by notice in the Gazette; or (ii) deal
with the accused otherwise in accordance with law”
[4] The accused was not declared unfit
to possess a firearm in terms of section 103 of Act 60 of 2000.
[5] As a result of an oversight the
sentence imposed is contrary to the provisions of
section 112(1)
(a)
of the
Criminal Procedure Act 51 of 1977
.
[6] Accordingly the following order is
made:
6.1 The conviction is confirmed.
6.2 The sentence is set aside. The
matter is remitted back to the trial court in terms of Section 312 of
the Act, to impose an appropriate
sentence.
E.K TSATSI. AJ
I concur.
S. NAIDOO. J
EKT