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[2012] ZAFSHC 159
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S v Naumann and Another (258/2012) [2012] ZAFSHC 159 (23 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 258/2012
In
the review between:-
THE
STATE
and
JACOB JOHANN
NAUMANN
...........................................
Accused
No 3
JOHAN VREY
....................................................................
Accused
No 4
_____________________________________________________
CORAM:
KRUGER, J
et
MOLEFE, AJ
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
23 AUGUST 2012
_____________________________________________________
[1] This is a special
review from the regional magistrate, Bloemfontein. The charges were
withdrawn against accused no 1 and no
2. Accused no 3 and 4 pleaded
guilty in terms of section 112 of Act 51 of 1977. The charge was a
contravention of regulation 36(1)(b)
of the regulations promulgated
under the
Marine Living Resources Act 18 of 1998
, Government Notice
R1111 published in Government Gazette No 19205 on 2 September 1998.
[2] In their plea
explanation the accused pleaded guilty to a contravention of
regulation 36(1)(b)
, the unlawful transportation or possession of
de-shelled abalone, in that they transported 12 540 units of abalone
on 7 September
2010 at or near Bultfontein whilst they were not
authorised or permitted to do so. The accused explain in the
section
112
statement that they were approached in Port Elizabeth and offered
R2 000 each to transport the abalone from Port Elizabeth to
Kemptonpark.
They were apprehended at Bultfontein. They admitted that
the value of the abalone they transported was R455 000.
[3] The regional
magistrate gave a detailed judgment on sentence. Accused no 3, Mr
Naumann, was sentenced to thirty six months correctional
supervision
in terms of
section 276(1)(h)
of Act 51 of 1977 and in addition to
two years imprisonment suspended for four years. In respect of
accused no 4, Vrey, the court
found that he was on bail for the
illegal possession of abalone when he fearlessly and boldly committed
the present offence. He
did not disclose the fact of his arrest to
the social worker, who compiled the pre-sentence report. The regional
magistrate sentenced
accused no 4 to four years imprisonment in terms
of section 276(1)(i) (correctional supervision after serving
1
/
6
of the sentence), plus a further two years
imprisonment suspended for four years.
[4] The regional
magistrate sent the matter on special review, because the sentence
imposed on Vrey exceeds the maximum permitted
for a contravention of
regulation 36. The penalty provision in respect of a contravention of
the regulation is contained in regulation
96:
“
96
Any person who contravenes or fails to comply with any provision of
these Regulations, shall be guilty of an offence and liable
on
conviction to a fine or to imprisonment for a period not exceeding
two years.”
[5] As to accused no 3
the regional magistrate is of the view that the sentence is in order.
“
The maximum
term of correctional supervision prescribed is 3 years and due to the
dissimilar nature of correctional supervision
and imprisonment the
penalty clause was not exceeded: Correctional supervision is not
imprisonment. Two years imprisonment is prescribed
and a limit is not
explicitly placed on the term of correctional supervision.
Imprisonment and correctional supervision may be
imposed together.
Section 276 of the CPA prescribes
that:
(3) Notwithstanding
anything to the contrary in any law contained, other than the
Criminal Law Amendment Act, 1997 (Act 105 of 1997),
the provisions of
subsection (1) shall not be construed as prohibiting the court-
(a) From imposing
imprisonment together with correctional supervision;
or ...”
In
S v HOLTZHAUSEN
[2002] 1 All SA 445
(EC) at 448 g – h it was held that a
magistrates’ court can impose imprisonment together with
correctional supervision,
with a maximum of three years in respect of
each. There is no need to interfere with the sentence imposed on
accused no 3. The
sentence has two separate and independent
components (
S v STANLEY
1996 (2) SACR 570
(A) at 575 d
– e).
[6] Regarding accused no
4 the regional magistrate says:
“
8] The
accused: Vrey is in custody resultant to the sentence. The primary
and ultimate purpose of the sentence in issue was for
the accused to
serve 8 (eight) months direct imprisonment. The sentence was on 22
June 2012. It will be in the best interest of
the accused to obtain
finality in the effecting of his sentence and therefore he was not
released pending the decision of the Honourable
Review Judge; he will
suffer no prejudice.”
The regional magistrate,
being made aware of the fact that the maximum penalty is two years
imprisonment, is of the view that accused
no 4 should only serve
eight months direct imprisonment. The regional court’s
intention when sentencing accused no 4 was
for him to spend eight
months in prison. Such imprisonment was justified in view of the
seriousness of the offence and the personal
circumstances of the
accused. The magistrate sought to achieve the aim of putting the
accused in prison for eight months by imposing
four years
imprisonment in terms of section 276(1)(i), in terms whereof the
accused would spend at least one sixth of the period
of 48 months in
prison, i.e. eight months (see
section 73(7)(a)
of the
Correctional
Services Act 111 of 1998
). Because of the penal provision in
regulation 96
which limits the court to two years imprisonment, that
purpose is now achieved by sentencing the accused to eight months
direct
imprisonment in terms of
section 276A(1)(b).
The sentence
which the regional magistrate suggests, and which is the appropriate
and correct sentence, is set out in the order
below:
ORDER
[7] (1) The sentence of
accused no 3 is confirmed.
(2) The sentence of
accused no 4 is substituted with the following:
In terms of
section
276(1)(b)
of the CPA the accused is sentenced to twenty four (24)
months imprisonment of which sixteen (16) months imprisonment is
suspended
for 5 (five) years on condition that the accused is not
again convicted of the illegal transport or possession of abalone in
terms
of
Regulation 36(1)(a)
of the regulations as promulgated under
Government Notice R1111 and published in the Government Gazette19205
of 2 September 1998,
as amended, read with
Regulation 1
and
96
of the
said Regulations as issued in terms of
section 77
of Act 18 of 1998,
the
Marine Living Resources Act and
read with
Section 1
and
58
(4) of
the said Act also read with
section 250
of the
Criminal Procedure Act
51 of 1977
and which was committed within the period of suspension.
(3) This sentence is in
terms of
section 282
of Act 51 of 1977 deemed to have been imposed on
22 June 2012.
(4) The magistrate’s
order regarding
section 103
of the
Firearms Control Act 60 of 2000
remains unchanged.
__________
KRUGER
I
agree.
_______________
D.S. MOLEFE, AJ
/sp/wm