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[2012] ZAGPPHC 227
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Sithole v S (A996/2011) [2012] ZAGPPHC 227 (4 October 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
Case
No: A996/2011
Date
heard: 04 October 2012
Date
of judgment: 04 October 2012
In
the matter between:
ELIAS
PHILEMON SITHOLE
.........................................
Appellant
and
THE
STATE
......................................................................
Respondent
JUDGMENT
PHATUDI
J:
[1]
The appellant is convicted on one count of fraud and one of forgery
in Amersfoort Regional Court.
[2]
The appellant was sentenced to 4(four) years imprisonment on fraud
count and 3 (three) years imprisonment on forgery.
[3]
Leave to appeal is granted only against sentence on forgery.
[4]
It is trite that sentencing remains pre-eminently within the
discretion of the sentencing court. It is further trite that the
appeal court can only interfere if misdirection on the part of the
trial can be found.
[5]
The state conceded that the trial court ought to have order the
sentence on forgery to run concurrently with that of fraud.
The state
refers me to section 280 (2) of
Criminal Procedure Act 51 of 1977
that permits the sentencing court to order various sentence s which
have been imposed to run concurrently.
[6]
On perusal of the record and having heard submissions made, I am of
the view that the trial court did misdirected itself by
not letting
the sentence on count 2 to run concurrently with that on count 1.
I,
in the result, would make the following order:
1.
The appeal is upheld.
2.
The sentence imposed by trial court is set aside and replaced with
the following
'Countl
- Accused is sentenced to 4 (four) years imprisonment
Count
2 - Accused is sentenced to 3 years imprisonment. The sentence in
count 2 is ordered to run concurrently with the sentence
on count 1.
Effective sentence is 4 (four) years imprisonment
A.
M.L Phatudi
Judge of the High Court
I
agree.
D.S.
Molele
Acting
Judge of the High Court
On
Behalf of the Appellant: M. Jungbluth
Botha
& Van Dyk Inc
30
De Clerq Street
Ermelo
Attorney:
Mr. M Jungbluth
On
Behalf of the Respondent: Director of Public Prosecutions
Church
Square
Adv.
N. R. Motaung