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[2013] ZAFSHC 141
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S v Morake (160/2013) [2013] ZAFSHC 141 (22 August 2013)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No. : 160/2013
In
the review between:
THE
STATE
versus
MATHEWS
MORAKE
CORAM:
LEKALE, J
et
PHALATSI, AJ
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
22 AUGUST 2013
[1]
On the 4th December 2012 the accused, who was not legally
represented, appeared before the magistrates’ court at Welkom
and pleaded guilty to driving whilst the level of alcohol in his
blood exceeded the statutory limit of 0,05 gram per 100 ml. He
was,
thereupon, convicted on his plea and fined R1 500.00 or 10 (ten)
months imprisonment.
[2]
He was, however, not advised of his rights with regard to automatic
review in terms of section 302 of the Criminal Procedure
Act (the
CPA). The learned magistrate subsequently became aware of the
omission and caused the accused to appear before him on
the 14th
December 2012 when he was duly advised of such rights and the record
was,eventually, purportedly dispatched to the Registrar
of this Court
for review purposes after a delay occasioned by the need for
reconstruction of the same.
[3]
When the matter first served before me I caused a request to be
directed for the available record to be placed before me as
it was,
apparently, inadvertently not enclosed.
[4]
The record has since been made available and I am grateful to the
learned magistrate therefor. In referring the matter the
trial
magistrate requested that
".......the
Honourable Judge rectify, in the best way deemed fit, the
anomaly...”
and,
further, laments that the record, as reconstructed,
“
is
riddled with textual and spelling mistakes.”
[5]
Once judgment is delivered or sentenced is passed in a criminal
matter, the court is
functus officio
and cannot reconsider or revisit the same unless it is wrong and was
delivered or passed by mistake in which case, the court
may amend it
before or immediately after it is recorded. (See
sections
196 and 298 of CPA.)
[6]
At common law the court has the power to change, amend or supplement
its judgment provided that the substance or tenor of
the judgment is
neither affected nor violated. (See
S
v Wells
1990 (1) SA 816
(A) at 820C - G.)
[7]
In the present matter neither the substance of the judgment nor the
tenor of the sentence is violated by the subsequent explanation
of
the accused’s rights on automatic review. The judgment and
sentence are left intact and the learned magistrate only
supplemented the sentence by indicating that the proceedings are
reviewable in the ordinary course in the light of the sentence
imposed and proceeded to advise the accused of his rights in the
circumstances. In so doing the trial court, effectively, invoked
the
common law and supplemented his sentence for the benefit of the
accused who appeared in person. To this extent the proceedings
cannot, in my view, be faulted. In fact, the learned magistrate’s
endeavours in this regard are laudable while the oversight
is
regrettable.
[8]
A perusal of the record confirms the learned magistrate’s view
that the record is riddled with textual and spelling
mistakes. The
aforegoing, however, does not
per se
mean that the record is such that it is not possible, therefrom, to
express an informed opinion on whether or not the proceedings
were
in accordance with justice. There is no application before us for
the correction of the record and, as such, our task is
limited to
reviewing the proceedings. (See generally
S
v Mpostolo Naubeni
Case Number
1962/2002, an unreported decision of the Free State High Court
delivered on the 5th September 2002.)
[9]
The provisions of the Adjustment of Fines Act 101 of 1991 are,
however, applicable insofar as the
National Road Traffic Act 93 of
1996
in terms of which the accused was convicted and sentenced, does
not stipulate the maximum amount of a fine which may be imposed
in
the event of a conviction and only prescribes applicable maximum
period of imprisonment. The ratio between the fine imposed
and the
alternative term of imprisonment must, therefore, accord with the
prescribed general ratio of 3 : 5 or R60 000.00 : 36
months (See
section 1(1
)(a) of Adjustment of Fines Act.)
[10]
In my view the proceedings are not in accordance with justice to the
extent that the ratio between the fine imposed and its
custodial
alternative is disturbingly high with the latter being
disproportionately harsh. (Compare
S
v Rooi
[2004] ZAWCHC 40.)
ORDER:
[11]
The conviction is confirmed but the sentence is set aside and in its
place and stead is substituted the following:
“
The
accused is fined R1 500.00 or 30 (thirty) days imprisonment.”
[12]
The aforegoing sentence is antedated to the 4th. December 2012.
L.J.
LEKALE, J
I
concur.
N.W.
PHALATSI, AJ