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[2009] ZAGPPHC 164
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S v Cedars (A435/2009) [2009] ZAGPPHC 164; 2010 (1) SACR 75 (GNP) (14 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
Date:
14/05/2009
Case
no: A435/2009
THE
STATE
and
GRANO
CEDARS
REVIEW
JUDGMENT
HARTZENBERG
J.
The
accused was charged with having stolen toothbrushes to the value of
R130, 00 from Checkers on 6 July 2008. He first appeared
in court on
7 July 2008. On 14 July 2008 he pleaded guilty to the charge The
magistrate enquired from the prosecutor whether acceptance
of (he
plea in terms of section 112 (1)(a) of The Criminal Procedure Act
would be in order The prosecutor replied in the affirmative
and the
accused was found guilty upon the plea only.
The
prosecutor thereafter proved two previous convictrons tor theft
commuted on 11 July 2007 and 1 March 2008 respectively In
mrtigation the accused staled that he had been unemployed fnr
ninre
than
a yea
r
,
anid that that was the reason for his conduct He is
42
years
old, divorced and must pay maintenance for two children aged
16
and
12
years
respectively. He stated that he did not have money for a fine and
confessed that he had" a drug problem The matter was
postponed
on a number of occasions for pre-sentence reports. The accused was in
custody On
3-0
September
2003 the matter resumed. On what was before the court it was clear
that the accused admitted that he committed the offence
and that he
wanted to be subjected to a rehabilitation program whilst under
correctional supervision. At that time there was a
report before the
court indicating that the accused tested negatively for all the drugs
for which he had been tested The magistrate
acceded to his request
and sentenced him to
12
months
correctional supervision Appropriate conditions were imposed.
The
matter was only sent on review during January 2009 and the magistrate
was immediately asked whether the sentence was a competent
one as the
accused had been convicted in terms of section
112(1
)(a).
The magistrate's repfy was received on
26
February
2009
and
the Director of Public Prosecutions was asked to comment on 27
February 2009 An extremely helpful memorandum of Adv.
H
M
Meintjes
S
C
dated
29
April
2009
was
received by the Registrar on
12
May
2009.
There
is an apology for the long delay
The
State, in my view, correctly concedes that the sentence of
correctional supervision coupled with house arrest is not a competent
sentence where there was a conviction under section
112(1
)fa).
The
incarceration of the accused between conviction and sentence was
similarly not competent On the other hand the State is correct
that
there is no doubt that the accused is guilty of the offence, has a
bad record, arid asked for the sentence in order to rehabilitate
himself. Although the sentence was technically incompetent it was an
appropriate sentence and the accused has already served more
than
half of it
In
the matter of
R
v Harmer,
1906
TS 50
at 52 Innes CJ held that a court on review only has to certify
that the proceedings are in accordance with real
and
substantial
justice, not necessarily in accordance with strict law, as it is
possible for prc-ceedings to be in accordance with
real and
substantial justice, even although
a
rule
of criminal procedure may not to have been observed. In
S
v Zulu,
1967
(4) SA 499
(T)
at
502D Claassen AJP stated, with reference to the
Harmer
matter
that the sentence dealing with automatic review does not require the
judge to certify that the proceedings are in accordance
with law but
in accordance with justice In that matter the court refused to set
aside an incompetent sentence so that the accused
could be sentenced
to a more onerous compulsory sentence.
Directly
in point is the matter of
S
v
Dantei
Maake,
an
unreported judgment in this division jn case A592/36 wherein Kriegler
J
confirmed
an incompetent sentence, after conviction on a plea in terms of
section 112(1 ){a), where the circumstances of the case
did not
warrant the setting aside thereof. M J Strydom
J
agreed
with him Kriegler
J
with
whom van der Merwe
J
agreed,
also refused to set aside a sentence of a fine, wheie the relevant
legislation did not provide for a fine, in the unreported
matter of
S
v Sipeng and Nkung.
no.
A1125/88 in this division.
In
my view the circumstances of this case do rot drclate that the
sentence imposed is to be set aside. The reports of the social
workers and the address to the court by the accused, indicate lhat
the accused wanted to be subjected to a rehabilitation program.
He
was aware of his dependency problem and he sincerely tried to
overcome
Jt
and
co-operated with the social workers and with the court. Moreover by
now he has served more than half of the sentence.
I
am
satisfied that the sentence was in accordance with real and
substantial justice, although there was a technical irreg
ulamty
The
following order is made:
The
conviction and sentence are confirmed.
W J
HARTZENBERG
JUDGE OF
THE HIGH COURT
I agree
A M L
PHATUDI
JUDGE OF
THE HIGH COURT