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[2013] ZAFSHC 185
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S v Mokoena (186/2013) [2013] ZAFSHC 185 (28 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No: 186/2013
In the review between:
THE STATE
versus
PHERENKGWANE JOSEPH MOKOENA
CORAM:
...........................................................
KRUGER,
J et NAIDOO, AJ
JUDGMENT:
....................................................
NAIDOO,
AJ
DELIVERED
ON:
...........................................
28
NOVEMBER 2013
REVIEW JUDGMENT
[1] The accused was sentenced as
follows by the magistrate at Bethlehem on 30 April 2010:
“The accused is fined Ten
Thousand Rand or Eighteen Months’ Imprisonment. Further that
the accused pays a Further Ten
Thousand Rand to the Complainant
Naledi Stella Bikatedi, which amount is payable on 13 April (meaning
today). Failure which the
accused will be brought before court for
resentencing.” (sic)
[2] The accused was convicted of fraud
in that he induced the complainant to give him R10 000 as deposit for
a Mercedes Benz motor
car costing R69 000, upon which payment she
would get the car. She deposited the R10 000 but she never got the
car. In passing
sentence the magistrate’s intention was that
the accused pay back the R10 000 to the complainant in addition to
the R10 000
fine.
[3] The accused paid the R10 000 fine
on 30 April 2010, the date he was sentenced but, according to the
magistrate granted a postponement
to the accused to pay the R10 000
to the complainant. The accused later paid R3 000. It would seem
that in about January 2013
the complainant informed the clerk of the
court that she had not received any money except the R3 000. R7 000
is still outstanding.
[4] The magistrate then realised that
his sentence contained no sanction to enforce payment of the full R10
000 to the complainant.
He sent the matter on special review to this
court asking resentencing or correction of his error.
[5] On 5 September 2013 an enquiry was
sent to the magistrate, asking whether the compensation order was
made under
section 297
or
300
of the
Criminal Procedure Act No 51 of
1977
.
[6] The magistrate responded that he
made the compensation order in terms of
section 297.
He says this is
evident from the words, “upon failure to pay, the accused will
be brought before the court for resentencing.”
Resentencing is
allowed in very limited circumstances. Examples are where the
accused has been declared a dangerous criminal
in terms of
section
286B(2)
and juveniles who were sentenced when they were under 21
years old
(section 76(3)(c)
of the
Child Justice Act No 75 of 2008
).
It is clear that the magistrate did not want to postpone the passing
of sentence as contemplated in
section 297(1)(a).
[7] The magistrate wanted to impose an
order that payment be made to the complainant subject to a sanction.
He did not impose a
sanction for non-payment. This is a mistake
which the magistrate says he will not make again.
[8] In my view of a portion of the
sentence imposed, (or possibly a further sentence in addition to the
one imposed should have
been imposed) and the operation thereof
suspended on condition that payment of compensation, as envisaged, be
made to the complainant.
Sub-section (9)(a)(ii) would have then
addressed the situation that has now arisen.
[9] It would seem that the sentence
which the magistrate wanted to impose was something like the
following:
1. The accused is
sentenced to pay a fine of R10 000 or undergo 18 months’
imprisonment.
2. In addition to
the above, the accused is sentenced to three years’
imprisonment, which is wholly suspended on condition
that the accused
pays R10 000 to the complainant, Naledi Stella Bikateli before 30
April 2010.
[10] It appears from the record that
the only reason why the magistrate did not impose direct imprisonment
was because the accused
was willing to compensate the complainant.
The offence was serious and in my view a proper sentence would have
been three years’
direct imprisonment. It now appears that the
accused has paid the fine of R10 000 and he then paid R3 000 to the
complainant via
the clerk of the court, Bethlehem.
[11] In the circumstances the sentence
imposed should be rectified.
[12]
ORDER
In terms of
section 298
of Act 51 of 1977 the order in the judgment
dated 28 November
2013 is amended to read as follows:
1. The sentence
imposed on 13 April 2010 (or 30 April 2010) is set aside and replaced
with the following:
1.1 The accused is
sentenced to pay a fine of R10 000 or undergo 18 months’
imprisonment.
1.2 In addition,
the accused is sentenced to 18 (eighteen) months imprisonment, which
is wholly suspended on condition that the
accused pay R10 000 to the
complainant, Naledi Steda Biketeli before 21 January 2014.
2. It is recorded
that the accused has already paid the R10 000 fine as well as R3 000
for the complainant. This means that, in
order to avoid the coming
into operation of the suspended sentence, the accused must pay R7 000
to the complainant before 21 January
2014.
3. Should the
accused fail to pay the amount of R7 000 to the complainant via the
clerk of the court, Bethlehem before 21 January
2014, the suspended
sentence will come into operation, and the accused must report to
prison within 48 hours after 21 January 2014.
4. The registrar
is requested to send a copy of this judgment to the control
magistrate at Bethlehem to assess reasons for the inordinate
delays.
There was no need to wait for the charge sheet – the charge
appears from the judgment.
_____________
S. NAIDOO, AJ
I agree.
_____________
A. KRUGER, J
/ebeket