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2009
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[2009] ZAGPPHC 168
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S v Masilela (A709/09) [2009] ZAGPPHC 168 (3 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A709/09
DATE:
03/08/2009
MAGISTRATE:
WITBANK HIGH COURT
REF
NO: 811 REVIEW
CASE
NO: C1869/2009
IN
THE MATTER OF:
THE
STATE
AND
KLAAS
OSCAR MAS
ILELA ACCUSED
REVIEW
JUDGMENT
SERITI,
J
The
accused appeared at the District Court, Witbank facing one charge
of unlawfully escaping from custody. He was convicted as
charged and
sentenced to five (5) years imprisonment, which sentence was said not
to run concurrently with the sentence he was
serving.
When
the matter came on review the Magistrate was requested to comment on
the appropriateness of the sentence imposed on the accused.
In
his comments, the Magistrate said, inter alia:
"In
reconsidering all the facts today, I must agree that direct
imprisonment of five (5) years may be too harsh under the
circumstances. Five years imprisonment, of which two years are
suspended, may be appropriate (provided that this term of
imprisonment
does not run concurrently with the sentence that he
is serving presently.)"
The
Director of Public Prosecutions was requested to comment on the
sentence imposed by the trial Court. Advocate F C Roberts, Senior
State Counsel, in his comments stated amongst others that although
the offence committed by the accused is serious, the trial Court
has
no jurisdiction to impose the sentence of five (5) years.
imprisonment, as the trial Court jurisdiction is limited to three
(3)
years imprisonment.
Section
92(1)(a) of the Magistrate's Court Act 32 of 1944 reads as
follows:
"Limits
of jurisdiction in the matter of punishments-
(1)
Save as otherwise in this Act or in any other law specially provided,
the court, whenever it may punish a person for an offence
-
(a)
by imprisonment, may impose a sentence of imprisonment for a period
not exceeding three years, where the court is not the court
of a
regional division, or not exceeding 15 years, where the court is the
court of a regional division."
Advocate
Roberts, in his comments stated that he could not find any legal
provision which authorises the trial court to impose sentence
of more
than three (3) years. Neither could I.
The
conclusion that I arrive at is that the trial court imposed a
sentence that is above its jurisdiction.
Director
of Public Prosecutions suggested a sentence of three (3) years
imprisonment.
The
accused when he escaped from custody, he jumped out of a bakkie that
was transporting them from police station to prison. No
violence was
used.
My
view is that a sentence of two (2) years imprisonment will be
appropriate in this case.
The
following order is made:
1.
Conviction is confirmed.
2.
Sentence imposed by the trial court is set aside and substituted by
the following: two (2) years imprisonment.
W
L SERITI
I
agree
F
M LEGODI