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[2011] ZAFSHC 68
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S v Seruoe (99/2011) [2011] ZAFSHC 68 (24 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 99/2011
In
the special review between:-
THE STATE
and
KABELO JACOB SERUOE
_______________________________________________________
CORAM:
MOLOI, J
et
LEKALE, AJ
_______________________________________________________
JUDGMENT
BY:
LEKALE, AJ
_______________________________________________________
DELIVERED
ON:
24 MARCH 2011
_______________________________________________________
[1] The accused was
convicted of theft by the Edenville Magistrates’ Court on 9
February 2011 and sentenced as follows:
“
Fined
R300 or one (1) month imprisonment which is wholly suspended for a
period of 1 (one) year on condition that [he] is not convicted
of
theft committed during the period of suspension – plus a
further two (2) months imprisonment running from 9 December 2010
to
date.”
[2] The latter part of
the sentence raised the eyebrows of the senior magistrate and he
directed an enquiry to the trial magistrate
who responded that she
was empowered by section 282 of the Criminal Procedure Act (the CPA)
to antedate a sentence in respect of
the period which the accused
spent in custody as an awaiting trial prisoner.
[3] The senior
magistrate, thereupon, invoked the provisions of section 304(4) of
the CPA and brought the issue to the attention
of this court with the
following remark:
“
My
interpretation of the Section as well as the dicta in S vs De Boer
1968(4) SA 866 (A) and S v Hawthorne en ‘n Ander 1980(1)
SA 521
(A) is that the trial court is not allowed to antedate any
sentence...”
[4] I
am in respectful agreement with the learned senior magistrate that
section 282 of the CPA cannot be used by the trial courts
to antedate
sentences which they impose. (See
S v SILENI
2005 (2) SACR 576
(E) at 577 f and compare
S v SEEKOEI
[1997] 1 ALL SA 40
(NC) at 46 b.)
[5] A
sentencing court which feels that the interests of justice require
that any period, which a convicted person spent in custody
prior to
being sentenced, should be taken into consideration may deduct same
from the sentence which it considers to be appropriate
in the
circumstances of the particular case. (See
S v HAWTHORNE
EN 'N ANDER
1980 (1) SA 521
(A) at 525 E.)
[6]
The Court further notes, without deciding the issue, that it is not
apparent
ex facie
the
record of the proceedings that the trial magistrate conducted an
enquiry, as required by section 103(2)(a) of the Firearms Control
Act, No. 60 of 2000 (the Act), before the trial court announced that
the accused is not declared unfit to possess a firearm.
[7]
Section 103(2)(a) of the Act requires in peremptory terms that an
enquiry should precede any declaration made in terms thereof.
The
purpose of such an enquiry is evidently to establish whether or not
the accused is unfit to possess a firearm regard being
had to the
nature and seriousness of the crime of which he has been convicted,
his personal circumstances and the interests of
the community, among
others. (See
MKHONZA v S
[2009] 3 ALL SA 358
(KZP) and
S v
MAAKE
2007 (1) SACR 403
(T) at para [18].)
[8] Where no such enquiry
was undertaken, the
ipse dixit
of the court on the matter can
hardly be said to be in the interests of justice.
[9] In conclusion it is
worth observing and reiterating, in our opinion, that trial courts
are obliged, as of law and without exception,
to conduct the relevant
enquiry where the provisions of section 103(2)(a) of the Act are
applicable.
[10]
ORDER:
1. In the result the
conviction is confirmed and the sentence is set aside and replaced
with the following sentence:
“
The
accused is fined R300,00 or 1 (one) month’s imprisonment wholly
suspended for a period of 1 (one) year on condition that
he is not
convicted of theft committed during the period of the suspension.”
[11] The said sentence is
antedated to run with effect from 9 February 2011.
______________
L.J. LEKALE, AJ
I concur.
____________
K.J. MOLOI, J
/sp