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[2011] ZAKZPHC 35
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S v Duma (R345/11) [2011] ZAKZPHC 35; 2012 (2) SACR 585 (KZP) (16 August 2011)
IN THE HIGH COURT OF KWAZULU NATAL, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
REPORTABLE
CASE NO. DR345/11
In the matter between:
THE STATE
and
MONGEZI DUMA
SPECIAL
REVIEW JUDGMENT
Delivered on
16/8/2011
________________________________________________________________
NDLOVU
J
[1] The issue arising in this matter, which was submitted by the
acting regional magistrate of Verulam in terms of section 304(4)
of
the Criminal Procedure Act
1
(the CPA), is whether an order made by a district court magistrate in
terms of section 114 or 116, as the case may be, of the CPA
referring
a case for sentence by a regional court, renders the district court
magistrate concerned
functus officio
to deal with the case any
further, where it subsequently transpires that the referral to the
regional court was erroneously made.
[2] On 4 February 2011 the accused was arraigned before the
magistrate’s court for the district of Verulam on two counts;
in that, firstly, he unlawfully tampered with a motor vehicle without
the consent of its owner in contravention of section 66(1)
read with
section 89 of the National Roads Traffic Act
2
;
and, secondly, he was found in unlawful possession of car breaking
implements in contravention of section 82 of the General Law
Amendment Act
3
.
The accused was legally represented at the trial and he pleaded
guilty to both counts. A statement, the contents of which were
confirmed by the accused, was handed up by the defence attorney in
terms of section 112(2) of the CPA, amplifying the accused’s
guilty pleas. Thereupon the magistrate dealt with the matter in
terms of section 112(1)(a) and convicted the accused on both counts
as charged.
[3] However, upon the state having proved that the accused had a
previous conviction of theft dated 23 June 2004 in respect of
which
he was sentenced to eight years’ imprisonment, conditionally
released on 23 September 2008 under parole supervision
until 12
January 2011, the magistrate determined that the accused, by virtue
of his previous conviction, deserved punishment in
excess of the
jurisdiction of the magistrate’s court. Hence the magistrate,
citing reliance on section 116
4
of the CPA, stopped the proceedings and committed the accused for
sentence by the regional court.
[4] When the matter came before the regional court for sentence, as
envisaged by the magistrate, the acting regional magistrate
opined,
correctly so in my view, that since in both instances the relevant
statutes prescribed for punishment which was within
the jurisdiction
of the magistrate’s court, the matter ought not to have been
referred to the regional court for sentence
in the first place. It
is on this basis that the acting regional magistrate submitted the
matter to this court with the request
that the order made by the
magistrate’s court be set aside and that the matter be remitted
to that court for sentence by
the magistrate who dealt with the
matter initially.
[5] The penalties prescribed for the offences referred to in counts 1
and 2 are, respectively, “
a fine or to imprisonment for a
period not exceeding one year
”
5
and “
a fine or to imprisonment for a period not exceeding
three years
”
6
.
The penal criminal jurisdiction of the magistrate’s court is a
fine not exceeding “
the amount determined from time to time
by the Minister by notice in the Gazette”
or
to
imprisonment not exceeding three years
7
.
Clearly, therefore, the penalties prescribed as maximum sentences in
both instances in this case fell within the magistrate’s
jurisdiction
8
and, on this basis, it was indeed an error on the part of the
magistrate to refer the matter to the regional court for sentence,
but the magistrate ought to have dealt with the sentencing
himself
9
.
[6] It is apparent that the acting regional magistrate assumed that
the magistrate’s referral in terms of section 114 was
a final
order which rendered the magistrate concerned
functus officio
in the matter. I do not believe that the assumption reflects the
correct legal position.
[7] Sections
114 and 116 of the CPA provide, to the extent relevant:
“
114
(1) If a magistrate’s court, after conviction following on a
plea of guilty but before sentence, is of the opinion –
(a) …..
(b) that the previous
convictions of the accused are such that the offence in respect of
which the accused has been convicted
merits punishment in excess of
the jurisdiction of a magistrate’s court;
(c) …
the court shall stop the
proceedings and commit the accused for sentence by a regional court
having jurisdiction.
(2) Where an accused is
committed under subsection (1) for sentence by a regional court, the
record of the proceedings in the magistrate’s
court shall upon
proof thereof in the regional court be received by the regional court
and form part of the record of that court
and the plea of guilty and
any admission by the accused shall stand unless the accused satisfies
the court that such plea or such
admission was incorrectly recorded.”
“116(1)
If a magistrate’s court, after conviction following on a plea
of not guilty but before sentence, is of the opinion
–
(a) …
(b) that the previous
convictions of the accused are such that the offence in respect of
which the accused has been convicted merits
punishment in excess of
the jurisdiction of a magistrate’s court;
(c) …
the court shall stop the
proceedings and commit the accused for sentence by a regional court
having jurisdiction.”
Since the accused was convicted on his guilty plea, it followed that
section 114, and not 116 (as the magistrate recorded), was
applicable
in this case.
[8] The general rule is that once a court has pronounced a final
judgment or order in a given matter, the court has itself no
authority to correct, alter or supplement that judgment or order.
10
In that respect the court has become
functus officio
in that
its jurisdiction in the matter has been fully and finally exercised
and, therefore, its authority over the subject matter
has ceased.
11
However, as it was noted by the court in
Van Streepen & Germs
(Pty) Ltd v Transvaal Provincial Administration
12
,
not every decision which a court makes constituted a ‘judgment
or order’ which was appealable. In certain circumstances
the
court’s decision would only constitute a ‘ruling’
which was merely a direction against which there was no
appeal
13
;
unless the decision disposed of a part of the relief claimed.
14
[9] In
Van Streepen
the court also explained that the main
reason that the concept of ‘judgment or order’ is
construed restrictively is
to avoid piecemeal decision of cases,
adding that:
‘
This
is undoubtedly a very cogent consideration, particularly where the
decision in question relates, for instance, to a procedural
matter or
to the admissibility of evidence and it may in the end not have a
decisive effect upon the outcome of the case.’
15
[10] As was reiterated in
Van Heerdan v De Kock
16
,
in criminal proceedings a presiding officer is not
functus officio
until after conviction and only becomes so at the point when the
accused is sentenced.
17
In the present instance the accused was only convicted but not yet
sentenced. What the magistrate did was only to give a direction
into
the future conduct of the case, namely, to refer the matter to the
regional court for the accused to be sentenced by that
court. This
direction was clearly not a final judgment or order which finally
disposed of the case but was, in my view, only a
ruling, capable of
subsequent reconsideration, alteration or amendment by the
magistrate.
[11] It seems to me, therefore, that the district magistrate’s
decision or referral under section 114 or 116 of the CPA is
merely a
ruling of a procedural nature seeking to direct the future conduct of
proceedings in a given case. In no way does this
decision dispose, or
seek to dispose, of the case. Consequently, the decision does not, in
my view, constitute a final judgment
or order and no appeal lies
against it. Accordingly, the presiding officer who made the decision
is not, as I see it, rendered
functus officio
in the matter.
[12] It ought to be borne in mind that no amount of previous
convictions is, in respect of a statutory offence, capable of
increasing
the maximum sentence prescribed by statute, regardless of
the penal jurisdiction of the sentencing court. In other words, even
if the regional court, in the present instance, had decided to
proceed and deal with the matter it would still have had no power
to
impose any sentence beyond the maximum penalties prescribed by the
relevant statutes under which the accused was charged and
convicted.
[13] Every court is obliged, in determining an appropriate sentence,
to take into account previous convictions that have been proved
against an accused.
18
However, the relevance and importance of the previous convictions so
proved will largely depend upon the elements which the previous
crimes have in common with the one that the accused is currently
convicted of.
19
Whether or not the previous conviction of theft is ‘relevant
and important’ in relation to the accused’s present
convictions is another question, which I think is to be better left
in the hands of the magistrate to determine. It seems to me
that the
appropriate step for this court to take, in the circumstances, is to
issue the necessary declaratory orders and refer
the matter back to
the magistrate for sentencing of the accused, in the hope that
regional magistrates shall in the future not
need to refer matters
such as this one to the high court, as it happened here. In the event
of the magistrate who convicted the
accused being not available, any
other magistrate of the same court shall, by virtue of section 275(1)
of the CPA, have the power
to deal with the matter accordingly.
[14] In the consequence, the following order is made:
The conviction of the accused is confirmed.
It is declared that the provisions of section 114 of the Criminal
Procedure Act 51 of 1977are not applicable in this case.
It is further declared that the magistrate’s court for the
district of Verulam has the requisite penal jurisdiction to
deal
with the matter.
The matter is remitted to the magistrate to give effect to the order
referred to in paragraph 3 above; and, in the event of the
magistrate who convicted the accused being unavailable, the matter
shall be dealt with by any other magistrate of the same court,
in
terms of section 275.
The magistrate shall, amongst others, take cognizance of any period
during which the accused was incarcerated, both prior and
after his
conviction, when determining the appropriate sentence
________________________
NDLOVU,
J
________________________
I agree
LOPES,
J
1
Act 51 of
1977
2
Act 93
of 1996
3
Act 129 of 1993
4
Section 116 deals with an instance where an accused pleaded not
guilty, which was not the case here. The correct and applicable
provision is section 114 which deals with a guilty plea situation.
5
Section 89(6) of Act 93 of 1996
6
Section 82 of Act 129 of 1993
7
Section 92(1)(a)
and (b) of the
Magistrates’ Courts Act 32 of
1944
8
S302(2)(a)
provides that “each sentence on a separate charge
shall be regarded as a separate sentence, and the fact that the
aggregate
of sentences imposed on an accused in respect of more than
one charge in the same proceedings exceeds the periods or amounts
referred to in that sub-section, shall not render those sentences
subject to review in the ordinary course.
9
It has been ascertained that the Magistrate is a male person”.
10
Firestone South Africa (Pty) Ltd
1977 (4) SA 298
(A) at
306F-G
11
Firestone
at 306F-G, citing with approval:
West Rand
Estates Ltd v New Zealand Insurance Co. Ltd
.,
1926 AD 173
at pp.
176, 178, 186-7 and 192;
Estate Garlick v Commissioner of Inland
Revenue
,
1934 AD 499
at p. 502
12
1987 (4) SA 569
(A)
13
Van Streepen
at 580D-F. See also
Dickinson and another v
Fisher’s Executors
1914 AD 424
at 427- 428. Compare
Steenkamp v SA Broadcating Corporatrion
2002 (1) SA 625
(SCA);
Jordaan v Bfn TLC
2004 (3) SA 371
(SCA)
14
Van Streepen
at 586I-J
15
Van Streepen
at 585E-F
16
Van Heerdan v De Kock NO en ‘n ander
1979 (3) SA 315
(E)
17
Van Heerdan
at 319D
18
Section 274
(4) of the CPA. See also
S v Muggel
1998 (2) SACR
414
(C)
19
S v J
1989 (1) SA 669
(A)