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[2012] ZAFSHC 91
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S v Jabuza (79/2012) [2012] ZAFSHC 91 (10 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Special Review No. :
79/2012
THE STATE
versus
MOSES MOROKA JABUZA
_____________________________________________________
CORAM:
HANCKE AJP
et
SNELLENBURG, AJ
_____________________________________________________
JUDGMENT
BY:
SNELLENBURG, AJ
_____________________________________________________
DELIVERED
ON:
10 MAY 2012
_____________________________________________________
[1] This is a special
review in terms of
section 304(4)
of the
Criminal Procedure Act, 51
of 1977
as amended.
[2] The accused was
charged in the District Court, Bloemfontein on a charge of theft
under case number 19/211/12. The accused was
not represented and
conducted his own defence.
[3] The record shows that
the accused was arrested on the 2
nd
of February 2012
whereafter his first appearance was on the 3
rd
of February
2012. He was duly informed of his rights to legal representation by
the court through the official court interpreter
and elected to
conduct his own defence. The matter was then remanded to the 6
th
of February 2012 for plea and trial and the accused was released on
warning.
[4] On 6 February 2012
the accused pleaded guilty to the charge of theft. The court then
went on to question the accused to ascertain
whether the accused
admitted all the elements for the crime he was charged with, namely
that of theft. The state accepted the plea
and the court was
satisfied that the accused admitted all the allegations in the charge
sheet (and hence the elements to sustain
the charge of theft) and
accordingly convicted the accused of theft.
[5] The stolen property
is said to be a bible and a dictionary, the property of Exclusive
Books Bloemfontein, to the total value
of R396-00.
[6] The state did not
prove any previous convictions of the accused. After questioning by
the court, the court took into consideration
for mitigation of
sentence that the accused was a first offender and that he had
pleaded guilty without wasting the court’s
time.
[7] The accused was then
sentenced as follows:
“
to pay a
fine of R500-00 or to undergo 5 months imprisonment and which
sentence is suspended for a period of 12 months on condition
that the
accused is not convicted of theft or a similar offence committed
during period of suspension”.
[8] The presiding officer
did not endorse the charge sheet to the effect that the matter was
subject to review nor did he explain
to the accused his rights to
review of the matter.
[9] The Control
Magistrate, however, brought it to the attention of the presiding
officer that the matter was indeed subject to
review in terms of
section 302
of the
Criminal Procedure Act, 51 of 1977
as amended,
since the accused was not legally represented and also due to the
fact that the presiding officer has not held the
substantive rank of
magistrate or higher for a period of seven years.
[10] The presiding
officer in his application for special review of the matter in terms
of
section 304
supra
,
concedes that he erred and that the matter should indeed have been
sent on automatic review as he has not been holding the substantive
rank of magistrate or higher for a period of seven years as set out
in
section 302
supra
.
The presiding officer in his application for special review requests
this court to condone the oversight and confirm the proceedings
or
make any order necessary under the circumstances.
[9]
Section 302(1)(a)(i)
and
section 302(3)(a)
provides that:
302
Sentences subject
to
review in the ordinary course
(a
)
Any
sentence imposed by a magistrate's court-
(i)
which,
in the case of imprisonment (including detention in a child and youth
care centre providing a programme contemplated in
section
191 (2) (j)
of
the
Children's Act, 2005
(
Act
38 of 2005
)),
exceeds a period of three months, if imposed by a judicial officer
who has not held the substantive rank of magistrate or higher
for a
period of seven years, or which exceeds a period of six months, if
imposed by a judicial officer who has held the substantive
rank of
magistrate or higher for a period of seven years or longer;
[Sub-para. (i)
substituted by s. 13
(a)
of
Act
26 of 1987
and
by
s.
99 (1)
of
Act
75 of 2008
.]
shall be subject in the ordinary
course to review by a judge of the provincial or local division
having jurisdiction.
(3)
The
provisions of subsection (1) shall only apply-
(a)
with
reference to a sentence which is imposed in respect of an accused who
was not assisted by a legal adviser.
It is clear that section
302
supra
indeed applies to this matter and that the matter
should have been sent for automatic review to this court.
[10] I am satisfied that
the accused is indeed guilty as charged and that the sentence imposed
by the trial court is in accordance
with justice.
[11] Having regard to the
fact that the matter was sent to this court on special review and
also considering the sentence imposed
by the trial court, I am
further of the opinion that the accused does not suffer any prejudice
by the matter being reviewed at
this stage only.
[12] Accordingly, I make
the following order:
12.1 The Magistrate’s
failure to advise the accused of his rights pertaining to the review
of the matter is condoned and the
conviction and sentence stands.
____________________
N. SNELLENBURG, AJ
I concur.
______________________
S.P.B. HANCKE AJP
/am