About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 66
|
|
S v Simbarash and Another (A116/13) [2013] ZAGPPHC 66 (21 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO:A116/13
CASE
NO : B438/2011
HIGH
COURT REF NO : 444
MAGISTRATE’S
SERIAL NUMBER : 15/2012
DATE:
21/02/2013
In
the matter between:
THE
STATE Vs MATHINGO SIMBARASH and MASENYANI R CHAUKE
REVIEW
JUDGMENT
TOLMAY,
J
[1]
This matter came before me by way of a review application in terms of
sec. 304 of the Criminal Procedure Act, Act no 51 of 1977,
as
amended. The two accused in this matter were found guilty of stock
theft. Accused one was sentenced to 3 years imprisonment
and accused
2 to a term of 5 years imprisonment.
[2]
On 8 May 2012 I sent a query to the learned magistrate as the record
was incomplete. Despite the incompleteness of the record
I also asked
the learned magistrate whether he did not improperly enter the arena.
I sent the query despite incompleteness of the
record to try and
ensure that the matter be dealt with expeditiously. The magistrate
did comment and denied entering the arena.
I accept the learned
magistrate’s explanation and this aspect does not require any
further consideration.
[3]
Pertaining to the incomplete record, the learned magistrate
apologised for the shortcomings and stated that the record was now
however complete. Despite this assurance the evidence of the one
witness, Mr Shirinda was still not in the record. The record was
sent
back again to rectify this. After the record was rectified it was
again placed before me.
[4]
Due to the aforesaid there was an inordinate delay in the
finalisation of this matter. Magistrates should take care that
incomplete
records are not send for review as this result in
unacceptable delays
1
which may lead to injustice. This problem occurs on a regular basis
in this division and magistrate’s should ensure that
records
are in order before it is sent for review.
[5]
After a perusal of the new complete record the following queries were
raised by me on 28 August 2012:
“
1.
Was the learned magistrate entitled to impose a sentence of 5 years
on Mr Masenyani? (Accused 2)
2.
Was the learned magistrate not limited to a sentence of 3 years in
the light of the provisions of the Act?
3.
Was the sentence of 3 years imprisonment not excessive in the light
of the fact that Mr Simbarash (accused 1) is a first offender?”
[6]
The magistrate furnished his reasons, which I then sent to the DPP
for their consideration. When the record was returned to
me the
magistrate’s comments were not in the court file and could not
be found by the Registrar or the DPP. The Registrar
stated this must
have been mislaid at the DPP’s office. Both the Registrar and
the personnel of the DPP should ensure that
documents are not mislaid
as it may hamper the administration of justice. The jist of it
however was that he deemed the sentences
to be appropriate.
[7]
The DPP submitted that:
1.
Although accused no 1 was a first offender, stock theft is a very
serious offence and therefore the sentence of 3 years imprisonment
is
not inappropriate. The DPP’s memorandum dealt with the general
principles pertaining to sentencing and was not of any
assistance
pertaining to the sentence imposed on accused 1.
2.The
learned magistrate could not have imposed a 5 year sentence on
accused 2 and that the matter should be referred back to the
magistrate for proper sentencing procedures to be followed. This
means that he must be referred to the Regional Court for sentencing.
[8]
I will first deal with the position of accused 1. A first offender is
not as of right entitled to a suspended sentence
2
.
The court should however take into consideration all the
circumstances of the case and the adage, punishment should fit the
criminal
as well as the crime, be fair to the accused and to the
society and be blended with a measure of mercy
3
.
Although stock theft is a serious crime and direct imprisonment maybe
imperative
4
, the possibility of suspending part of the sentence should have been
considered,
[9]
Accused no 2 was sentenced to 5 years' imprisonment because he has
previous convictions of a similar offence. Section 92(1)
of the
Magistrates’ Court Act 32 of 1944 stipulates that a Magistrate
Court, which is not a Regional Court, may impose a
sentence of
imprisonment, not exceeding 3 years.
[10]
Section 14 (a) of the Stock Theft Act 57 of 1959 reads as follows:
“
14.
Jurisdiction of magistrates’ courts in respect of sentence. -
Notwithstanding
anything to the contrary in any law, any magistrate’s court
may, in respect of an offence under this Act -
(a)
where the court is not a court of a regional division, impose a fine
or imprisonment for a period not exceeding three years;
or”
[11]
In the light of the aforesaid the learned magistrate acted ultra
vires by sentencing accused 2 to 5 years imprisonment. Accused
2
should have been referred back to the Regional Court for sentencing
purposes, if the magistrate considered a sentence exceeding
3 years
to be appropriate in the light of the accused’s previous
convictions
[12]
In the light of the aforesaid the following order is made:
12.1
The convictions of accused 1 and 2 is confirmed;
12.2
The sentences are set aside and the following order is made:
12.2.1
Accused 1 is sentenced to 3 years imprisonment of which 18 months is
suspended for a period of 5 years under the condition
that he is not
found guilty of the same offence during the period of suspension.
12.3
Accused 2 is referred back to the Regional Court for sentencing.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
E
JORDAAN
JUDGE
OF THE HIGH COURT
1
See S v Nyaumbeka 2012(2) SACR [ECG[
2
S
v Victor 1970(1) SA 427 (A), S v Viljoen 1971(3) SA 483(H), S v
Holder 1979(2) SA 70(D)
3
S v V 1972(3) SA 611(A) at 614
4
S
v Oosthuisen en 'n Ander 1996(1) 475 (0) SACR