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[2011] ZAFSHC 28
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S v Zulu (49/2011) [2011] ZAFSHC 28 (17 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 49/2011
In the review between:
THE STATE
and
THAMSANXA JACKSON
ZULU
CORAM:
MOCUMIE, J
et
SINGH, AJ
_______________________________________________________
JUDGEMENT:
SINGH, AJ
_______________________________________________________
DELIVERED ON:
17 FEBRUARY 2011
_______________________________________________________
[1] This matter is before
me on automatic review in terms of
section 303
of the
Criminal
Procedure Act, 51 of 1977
. The accused was charged with two (2)
counts of housebreaking with intent to steal, theft Botshabelo
district magistrate’s
court. The accused was acquitted on one
count. In respect of the second count the accused was convicted and
sentenced to undergo
12 months imprisonment in terms of
section
276(1)(b)
of the Criminal Procedure Act 51 of 1977. The accused was
unrepresented at the trial.
[2] The issue to be
decided by me is whether the trial magistrate committed any
irregularities and/or illegalities which were prejudicial
to the
rights of the accused to a fair trial which has resulted in a failure
of justice.
[3] I have perused and
considered the record of the trial proceedings in the court
a quo
and I find that the conviction of the accused is in order. I turn now
to deal with whether the sentence imposed upon the accused
is in
order.
SENTENCE
[4] The trial magistrate,
in sentencing the accused, failed to consider all the material facts
including the personal circumstances
relevant for purposes of
imposing a suitable sentence and also failed to blend the sentence
with any mercy whatsoever. Consequently,
it is within my power to
interfere with the sentence to correct the prejudice done to the
accused.
[5] The personal
circumstances considered by the trial magistrate are as follows. The
accused was gainfully employed and resided
with his pensioned
grandmother, girlfriend and their 4 month old child. Nothing further
was considered hence the sentence of imprisonment.
However, the fact
of the matter is that the accused told the said magistrate that he
was employed at chicken wholesale, Bloemfontein
and earned sixty
rands (R60-00) per day. The trial magistrate neglected to probe the
personal circumstances of the accused who
may well have access to
monies, whether from savings or other means, and may well be able to
pay a fine. The magistrate also overlooked
the fact that the accused
is fairly youthful capable of rehabilitating himself, and is a first
offender.
[6] In the circumstances,
the sentence is unduly harsh, shockingly inappropriate and falls to
be corrected.
In the result I make the
following order as follows:
The sentence imposed
by the trial court is hereby set aside and replaced with a sentence
of a fine of R1 000,00 (one thousand
rand) or 1 (one) year
imprisonment.
This order is in
accordance with
Section 282
of the
Criminal Procedure Act 51 of 1977
and will be effective from 26 November 2010.
_____________
S. SINGH, AJ
I concur.
________________
B. C. MOCUMIE, J
/eb