About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 244
|
|
S v Radebe (451/12) [2012] ZAFSHC 244 (20 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 451/12
In the review between:-
THE STATE
and
PAULOS JABULANI
RADEBE
_______________________________________________________
CORAM:
KRUGER, J
et
DAFFUE, J
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
20 DECEMBER 2012
_______________________________________________________
[1] This matter was
referred to the High Court as a special review in accordance with the
provisions of section 304(4) of the Criminal
Procedure Act 51 of 1977
(the Act).
[2] On 27 February 2012
the accused, who was unrepresented, but whose rights pertaining to
legal representation were explained to
him by the presiding
magistrate, pleaded guilty of theft of five gravel hoods of an
unknown value. The magistrate did not invoke
the provisions of
section 112(1)(b) of the Act, but convicted the accused based on his
plea of guilty. On the same day he was sentenced
to a fine of R2
000,00 or 90 (ninety) days’ imprisonment wholly suspended for
three years on condition that he is not convicted
of theft committed
during the period of suspension. He was not declared unfit to possess
a firearm in terms of
section 103(2)
of the
Firearms Control Act, 60
of 2000
.
[3] The head of the
Magistrates’ office in Harrismith referred the matter as a
special review to this court upon becoming
aware of the matter during
a routine inspection. The particular magistrate who conducted the
trial is not in the employ of the
Department of Justice and
Constitutional Development anymore.
[4] In terms of section
112(1)(a) of the Act the maximum fine that could be imposed upon the
accused is R1 500.00, whether or not
the fine or any portion thereof
is suspended. As indicated there is no indication as to the value of
the stolen goods and whether
or not these were retrieved. It appears
from the record that the accused is employed as a driver and that he
earns R1 000.00 per
fortnight. He also indicated that he could afford
to pay a fine. In the circumstances the sentence should be reviewed
and set aside
with reference to the fine imposed in order to replace
the R2 000.00 with an amount of R1 500.00. This is in line with the
submission
of the head of the Harrismith Magistrates’ office to
whom I am indebted.
[5] The High court was
also requested to provide guidance pertaining to the apparent
illogical situation created by the legislature
with reference to
sections 56(1), 57 and 112(1)(a) of the Act. The following is a
summary of the various sections.
[6] Where an accused at a
summary trial in any court pleads guilty to the offence charged, or
to an offence of which he may be convicted
on the charge and the
prosecutor accepts that plea, the presiding officer, whether a judge,
regional magistrate or magistrate,
may under certain circumstances
convict the accused and impose any competent sentence other than
imprisonment or any other form
of detention without the option of a
fine, or a fine exceeding the amount determined by the Minister from
time to time by notice
in the Government Gazette which presently is
R1 500.00.
[7] Contrary to the above
provisions, sections 56(1) and 57(1) provides for the imposition of
much higher sentences by peace officers
and public prosecutors
respectively. Again in these instances, as is the case in section
112(1)(a) proceedings, the idea of the
legislature is to provide for
the payment of fines for relatively minor offences. However, section
56(1) and sub-section 56(1)(c)
in particular stipulates that a peace
officer may in certain circumstances issue a written notice to an
accused with an endorsement
in terms of section 57 of the Act that
the accused may admit his guilt in respect of the offence and pay a
fine to a maximum of
R2 500.00 without appearing in court. In similar
vein a public prosecutor or clerk of the court may in terms of
section 57, and
when a summons has been issued against an accused in
accordance with section 54, endorse the summons to the effect that
the accused
may admit his guilt in respect of the offence in question
by paying a fine to a maximum of R5 000.00. Once the fine has been
paid
in the last-mentioned scenario, the further sub-sections of
section 57 have to be complied with. The clerk of that magistrates’
court shall enter the essential particulars in a criminal record book
for admissions of guilt whereupon the accused shall be deemed
to have
been convicted and sentenced by the court in respect of the relevant
offence, although the judicial officer presiding at
the court in
question may set aside the conviction and sentence on examination of
the relevant documents.
[8] The head of the
Harrismith Magistrates’ court is of the view that the aforesaid
discrepancies do not make sense. Not only
can relatively stiff
sentences be imposed upon accused persons without them appearing in
court contrary to the provisions of section
112(1)(a), but there is
also no justification for allowing peace officers, public prosecutors
and clerks of the court to impose
sentences much higher than
presiding officers such as judges, the regional magistrates and
magistrates if section 112(1)(a) is
invoked. Obviously all presiding
officers are bound by the provisions of the Act and they are
constrained not to impose sentences
in excess of the stipulated
maximum if section 112(1)(a) procedure is followed. I am indebted to
the head of the Harrismith Magistrates’
court for his insight
and initiative shown. Although presiding officers should not traverse
the boundaries of their own power and
should show due deference to
the domain of the other arms of State, such as the legislature, the
legislature should take cognisance
of the discrepancies in order to
possibly revisit these matters and to increase the maximum fine in
section 112(1)(a) proceedings
to at least an amount equal to the
amount prescribed in section 57, to wit R5 000.00. There appears to
be no reason why a presiding
officer must utilise the more cumbersome
section 112(1)(b) procedure in order to satisfy him- or herself that
the accused is indeed
guilty of the offence to which he has pleaded
guilty in all cases where a fine in excess of R1 500.00 is considered
to be realistic.
ORDER:
[9] Consequently the
following orders do issue:
9.1 The conviction is
confirmed.
9.2. The sentence is set
aside and substituted with the following sentence:
“
Payment
of a fine in the amount of R1 500.00 or 90 (ninety) days’
imprisonment, wholly suspended for three years on condition
that the
accused is not convicted of theft committed during the period of
suspension.”
9.3. The Registrar of
this court is directed to send a copy of this judgment to the State
Law Advisors in the Department of Justice
and Constitutional
Development.
_____________
J.P. DAFFUE, J
I concur.
____________
A. KRUGER, J
/spieterse