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[2012] ZAGPPHC 28
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S v Kganyago (A124/2012) [2012] ZAGPPHC 28 (2 March 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
MAGISTRATE:
ET MASHILE POLOKWANE
High
Court Reference No. 158
Magistrate
serial No. 1/12
Review
Case No. DC2195/10
Case:A124/2012
Date:02/03/2012
THE
STATE
vs
DAVID
MASOGA KGANYAGO
REVIEW
JUDGMENT
MAKGOKA,
J:
[1]The
accused, a 62 year old man, was convicted of two counts of fraud in
the magistrate court, Polokwane. The conviction is in
order. The
sentence reads:
"Three
years imprisonment of which two years imprisonment is suspended for a
period of five years on condition that you are
not convicted of fraud
or "faugering" (sic) and uttering false document committed
during the period of suspension.
[2]
The learned magistrate has sent the record of proceedings to this
court on special review in terms of s304(4) of the Criminal
Procedure
Act which provides:
"If
in any criminal case in which a magistrate's court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or judge shall have the same power in
respect of such proceedings as if the record thereof had been laid
before such court or judge in terms of section 303 or this section".
[3]
The basis for the learned magistrate's referral to this court is
simply that the sentence is silent as regards the count to
which is
related since the accused had been convicted of two counts. He states
that he had intended to taken both counts as one
for purposes of
sentence and impose the same sentence that he did. In his
pronouncement of the sentence, he inadvertently omitted
to state that
the two counts were taken as one for the purpose of sentence. Apart
from this omission, the proceedings appear to
be in accordance with
justice.
[4]
He therefore requested that the sentence be rectified in that
respect. I agree.
[5]
In the result the conviction is confirmed. The sentence imposed by
the learned magistrate is set aside and substituted with
the
following:
"Both
counts are taken as one for purposes of sentence: 3 (three) year's
imprisonment of which 2 (two) years are suspended
for 5 (five) years
on condition that the accused is not convicted of fraud or forgery
and uttering a forged document, committed
during the period of
suspension. No order is made in terms of section 103 of Act 60 of
2000".
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree
N
KOLLAPEN
JUDGE
OF THE HIGH COURT