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[2009] ZAGPPHC 235
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S v Dube (A525/09) [2009] ZAGPPHC 235 (22 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG PRETORIA)
DATE:22/06/2009
CASE
NO:A528/09
DATE:
08 June 2009
Magistrate
Case No: PR 17/2009/TEM
High
Court Ref No: 602
THE
STATE v NQOBILE THANDI DUBE
REVIEW
JUDGMENT
JORDAAN.
J:
The
accused was convicted the magistrate's court, Pretoria on a charge of
theft. She was sentenced to 3months direct imprisonment
wholly
suspended for a period of 3(three) year on the normal conditions of
suspensions.
The
accused pleaded guilty and the matter was disposed in terms of
section 112(1) (a) of Act 51 of 1977.
The
matter came to the attention of the Chief Magistrate of Pretoria
during Quality Control Measures He is of the view that an incompetent
sentence has been imposed and sent the matter on review with the
request of that the sentence be set aside. I agree with the
magistrate
of the view of the Chief Magistrate.
A
sentence of imprisonment without option of a fine .even if wholly
suspended, cannot be imposed where the Court had followed the
procedure as followed in section 112(1)(a).
The
office of the Director of Public Prosecutions referred me to an
reported case of S Raath, A5Q7/06 where Southwood J said the
following:
"A
presiding officer who sentence an accussed person in terms of section
112( 1 )(a) of the Act must be of the opinion of that
the offence
does not merit punishment of imprisonment without an option of fine.
Section 112 (1)(b) provides the cases where the
Presiding officer is
of the opinion of imprisonment or any other form of detention without
the option of fine".
The
sentence is aside and the matter is remitted to pass sentence afresh.
E
Jordaan
Judge
of the High Court I agree
I
agree
BR
Du Plessis
Judge
of the High Court