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[2012] ZANCHC 23
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S v Mmolawa and Another (97/11) [2012] ZANCHC 23 (11 May 2012)
3
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
IN THE HIGH COURT OF
SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT, KIMBERLEY]
REVIEW CASE NO:
97/11
In the matter
between:
SHADRACK MMOLAWA
…...................................................................................
ACCUSED
1
MODISAOTSILE HARRY
MOFETA
…..................................................................
ACCUSED
2
AND
THE STATE
___________________________________________________________________________
Coram : PAKATI AJ et
HUGHES-MADONDO AJ
Date of judgment :
11 MAY 2012
REVIEW JUDGMENT
PAKATI AJ
This matter came
before us by way of automatic review in terms of
Section 85
of the
Child Justice Act, 75 of 2008
. The accused were charged and
convicted of housebreaking with intent to steal and theft on 07
August 2011 before Magistrate Mr
H.H Strauss. They pleaded guilty to
the charges and were sentenced in terms of
section 297
(1) (a) of
the
Criminal Procedure Act, 51 of 1977
. The accused were represented
by Mr Gothla. They were correctly convicted.
The sentence reads as
follows:
“
Ingevolge
Art 297 (1)(a) Wet 51 van 1977 word die oplegging van beide
(beskuldigde) vonnise uitgestel vir ‘n periode van 5
(vyf) jaar
op voorwaarde dat beide (beskuldigde) elke 3 (drie) maande by die
maatskaplike werker Jan-Kempdorp aanmeld tot bereiking
van die
ouderdom van 18 jaar. Beide beskuldigde word beveel om by verstryking
van die uitstel periode weer voor die hof te verskyn”.
Mmolowa (accused 1)
was born on 03 October 1996 and Mofeta (accused 2) on 21 June 1994.
Each of them has been ordered to “
elke 3 (drie) maande by
die maatskaplike werker Jan-Kempdorp aanmeld tot die bereiking van
die ouderdom van 18 jaar”
. There is therefore a great
disparity in the treatment of the accused for the same offence,
committed by them together, with
no evidence that anyone of them
took a significant leading role. In terms of the Magistrate’s
order Mofeta will complete
his reporting on 21 June 2012 (in just
over a month’s time when he turns 18) whereas Mmolowa will
have to complete his
reporting on 03 October 2014 when he becomes 18
years.
It is a principle of
our law that where “there is a disturbing disparity in …
sentences, and the degrees of participation
are more or less equal,
and there are not personal factors warranting such disparity,
appellate interference with the sentence
may, depending on the
circumstances, be warranted. The ground of interference would be
that the sentence is disturbingly inappropriate”.
See
S v
GIANNOULIS
1975 (4) SA 867
(A)
at 873G-H.
The order by the
magistrate is also not comprehensive enough because it does not
state that the accused should be accompanied
by their parents;
appropriate adults or guardians when reporting to the Social Worker,
Jan Kempdorp.
The order by the
Magistrate must not really be viewed as punishment but as a
correctional and rehabilitative measure. I see nothing
magical about
the age of 18 years, with reference to Mofeta. He was sentenced on
08 March 2012 and shall have benefitted nothing
when he turns 18 in
over a month’s time.
In the circumstances
I make the following order:
The sentence by the
magistrate is set aside and replaced with the following sentence:
“
1.
In terms of
Section 297
(1) (a) of the
Criminal Procedure Act, 51 of
1977
, the passing of sentence is postponed for a period of five years
on condition that each accused, accompanied by his parent; an
appropriate adult or a guardian, reports to the Social Worker,
Jan-Kempdorp, every three months calculated from 08 March 2012:
In respect of
accused 1 (Mmolawa) until 30 June 2013.
In respect of
accused 2 (Mofeta) until 31 March 2013.
2. Both accused are
ordered to appear before Court at the expiration of the period of
suspension being the first Court date after
08 March 2017”.
3. In terms of
Section 282
of the
Criminal Procedure Act, 51 of 1977
, this order is
antedated to 08 March 2012.
__________________
BM PAKATI
ACTING
JUDGE
_____________________
W
HUGHES- MADONDO
ACTING
JUDGE