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[2012] ZAFSHC 171
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S v Mhlapho (241/2012) [2012] ZAFSHC 171 (13 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 241/2012
In
the review between:
THE
STATE
and
SELLO
MHLAPHO
_____________________________________________________
CORAM:
LEKALE, J
et
MTHEMBU, AJ
JUDGEMENT:
MTHEMBU, AJ
DELIVERED ON
:
13 SEPTEMBER 2012
[1] This is a special
review in terms of
section 304(4)
of the
Criminal Procedure Act, no
51 of 1977
.
[2] On 14 June 2012 the
accused, who was unrepresented, was charged in the Bloemfontein
District Court with theft in that upon or
about 7 June 2012 and at or
near Jet Clothing Store, Maitland Street, he did wrongfully and
intentionally steal six (6) pairs of
Buccaneers shoes, one (1) double
bed comforter and one (1) brown travelling bag. The total value of
these items was R1 609,22.
[3] The accused pleaded
guilty to the aforementioned charge and the magistrate found him
guilty. The trial court, thereupon, imposed
the following sentence e
x
facie
the record:
“
A
fine of one thousand five hundred rand (R1 500,00) or six (6) months
imprisonment wholly suspended on condition that you don’t
commit any or the same offence in the period of three years.”
Whereas on the J15 the
sentence imposed is reflected as:
“
R1
500,00 fine or imprisonment, wholly suspended for three years on
condition that no office is committed during the suspension.”
[4] The aforegoing
discrepancies caught the attention of the control magistrate who
referred the matter for special review and noted
that:
4.1. The term of
imprisonment has been omitted on the J15 and the condition of
suspension to wit “no office (offence) is committed”
is
too broad;
4.2. If the magistrate
applied
section 112(1)(a)
of the
Criminal Procedure Act 51 of 1977
,
then the sentence imposed is incompetent as it is in excess of three
(3) months and contrary to the provisions of this section;
4.3. On the other hand if
the magistrate applied the provisions of
section 112(1)(b)
then
ex
facie
the record the judicial questioning of the accused falls
short of the requirements of this section and therefore a guilty
verdict
cannot follow;
4.4. Further hereto the
sentence imposed by the acting magistrate is subject to automatic
review as he has been on the bench for
less than seven (7) years. The
magistrate omitted to explain review rights to the accused or submit
the record of proceedings for
review as required in terms of
section
302
of Act 51 of 1977.
[5] The learned control
magistrate concludes that the proceedings are not in accordance with
justice and requests that same be set
aside
in toto
and the
record be remitted for a trial
de novo
.
[6] I am in respectful
agreement with the learned magistrate that the proceedings were not
in accordance with justice. This court
will not hesitate to use its
power of review when the interests of justice clearly demand its
intervention. Compare
S v MAFU
1966 (2) SA 240
(EC);
S
v ELI
1978 (1) SA 451
(EC).
ORDER:
[7] In the light of the
above the entire proceedings inclusive of the sentence imposed by the
acting magistrate are set aside.
[8] The record is
remitted for a trial
de novo
before another magistrate.
__________________
J. B. MTHEMBU, AJ
I concur.
__________________
L. J. LEKALE, J
/eb