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[2020] ZASCA 1
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Oosthuizen and Another v S (180/2018) [2020] ZASCA 1 (21 January 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 180/2018
In
the matter between:
WILLEM
JAKOBUS ALBERTUS
OOSTHUIZEN FIRST
APPELLANT
THEO
MARTINUS JACKSON SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Oosthuizen
& another v The State
(180/2018)
[2020] ZASCA 1 (21 January 2020)
Coram:
Van
der Merwe, Plasket and Mbatha JJA and Tsoka and Dolamo AJJA
Heard:
Disposed
of without oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
Delivered:
21
January 2020
Summary:
Correction
of patent error in order.
AMENDED
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria, functioning as Mpumalanga
Division, Middelburg (Mphalele J sitting as court of first
instance):
1 The appeal
succeeds.
2 The order of the
court a quo is set aside and replaced with the following order:
‘
(a)
Both accused are found guilty of the offences of assault with intent
to do grievous bodily harm (count 5) and of kidnapping
(count 4).
(b)
Accused 2 is found guilty of defeating the ends of justice (count 7).
(c)
The accused are each sentenced to five years imprisonment on the
conviction of assault with intent to do grievous bodily harm
(count
5).
(d)
The accused are each sentenced to 1 year imprisonment on the
conviction of kidnapping (count 4).
(e)
Accused 2 is sentenced to 1 year imprisonment on the conviction of
defeating the ends of justice (count 7).
(f)
It is ordered that the sentence in respect of count 4 is to run
concurrently with the sentence imposed on (count 5).
(g)
It is ordered that the sentence in respect of count 7 is to run
concurrently with the sentence imposed in count 5.
(h) The sentences
are antedated to 27 October 2017.’
JUDGMENT
Mbatha
JA (
Van
der Merwe and Plasket JJA and Tsoka and Dolamo AJJA concurring
):
[1]
On 2 December 2019, this court made an order in this appeal. This
court upheld the appeal, set aside the order of the trial
court and
replaced it with an order imposing substituted convictions and
sentences. In terms of para (h) of the order, these sentences
were
antedated to 25 August 2017. The fixing of this date was an error.
The intention of this court was to antedate the sentences
to 27
October 2017, in keeping with
s 282
of the
Criminal Procedure Act 51
of 1977
. In the result the error should be corrected so as to give
effect to the true intention of this court. (See
Firestone
SA (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 307D)
[2]
In the result the following amended order is made:
1 The appeal
succeeds.
2 The order of the
court a quo is set aside and replaced with the following order:
‘
(a)
Both accused are found guilty of the offences of assault with intent
to do grievous bodily harm (count 5) and of kidnapping
(count 4).
(b)
Accused 2 is found guilty of defeating the ends of justice (count 7).
(c)
The accused are each sentenced to five years imprisonment on the
conviction of assault with intent to do grievous bodily harm
(count
5).
(d)
The accused are each sentenced to 1 year imprisonment on the
conviction of kidnapping (count 4).
(e)
Accused 2 is sentenced to 1 year imprisonment on the conviction of
defeating the ends of justice (count 7).
(f)
It is ordered that the sentence in respect of count 4 is to run
concurrently with the sentence imposed on (count 5).
(g)
It is ordered that the sentence in respect of count 7 is to run
concurrently with the sentence imposed in count 5.
(h)
The sentences are antedated to 27 October 2017.’
__________________
Y
T Mbatha
Judge
of Appeal
Appearances:
For
the Appellants: No appearance
For
the Respondent: No appearance