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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 286
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S V Dibakwane (A300/2008) [2009] ZAGPPHC 286 (25 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
DATE:
25/09/09
MAGISTRATE
PRAKTISEER
CASE
NO: A300/2008
SUPREME
COURT REF NO: 1808
THE
STATE v VILJOEN DIBAKWANE
REVIEW
JUDGMENT
PRELLER.
J
The
accused was convicted of theft of a motor vehicle in the magistrate's
court Praktiseer after a plea of guilty. He was convicted
on 29
August 2008. The record was transcribed fairly promptly and was
signed by the magistrate on 11 September 2008. The record
reached the
Registrar for review on 3 October 2008 and there is no explanation
for the apparent delay of three weeks.
The
case came before me on review on 6 October and on the next day I sent
a query to the magistrate. The query was divided into
two parts, the
first one is no longer relevant for present purposes. The second part
comprised certain questions about the value
of the motor vehicle
which had an important bearing on the order made by the magistrate
that the accused pay compensation to the
complainant apparently in
terms of section 297(1 )(b) of the Criminal Procedure Act. The reply
from the magistrate was only dated
31 July 2009. Annexed to the
magistrate's answer is an affidavit by himself from which it appears
that his motor vehicle was involved
in a collision during November
2008, that the police had taken everything in the vehicle for
safekeeping and that it had taken
him a considerable time to get the
documents that were in his car and which include the documents in the
present case, back from
the police.
Included
in the affidavit is a paragraph which reads as follows:
"I
wish to state further that the document related to the certificate of
the motor vehicle and the last statement from the
bank showing the
installment amount and outstanding balance." (sic)
This
was apparently in reply to the following question put by me to the
magistrate:
"2. Of
what is the 'outstanding balance' R82 000? If it is on an installment
sale agreement, should that document not
have been placed before the
court?"
There
is no reference in the record to any document. The following need to
be said about the aforegoing:
1.
The delay of almost ten months in answering my query is unacceptable.
From the very nature of the procedure of review it is essential
that
queries be attended to promptly. The query should have been answered
before his car w7as involved in the accident.
2.
It is not competent for the magistrate to attempt to amplify the
record by submitting his own evidence in affidavit form.
The
sentence imposed by the magistrate read as follows:
"Three
years imprisonment suspended on condition accused compensate the
complainant amount of R40 000,00 fine on instalment
of R2 000 a month
commencing on or before 7 September 2008 until the above amount is
paid in full." (sic)
The
problem that I had with the sentence was inter alia
that there is no indication whatsoever
of the value of the vehicle that had been stolen and destroyed by the
accused. There was
accordingly no basis upon which the compensation
amount of R40 000,00 could be rationally based. The whole of the
evidence from
the complainant in this regard reads as follows:
"Yes,
I tried to talk to him before this. However, he then told me -after I
laid charges against him he then offered to compensate
me. He has
thus paid R6 000,00. The R2 000,00 is little at least R3 000,00 a
month would be better. The outstanding balance is
R82 000,00. I still
pay the money and I need him to pay and it would n't help to take him
to jail. That is all."
It
will be noticed immediately that the value of the vehicle could not
be established from the evidence of the complainant nor could
her
loss in the sense of an obligation to pay the purchase price of the
stolen vehicle be reliably determined.
In
a very helpful memorandum received from Mr Menigo of the office of
the Director of Public Prosecutions it was suggested that
the fact of
the long delay in answering my query could be referred to the
Magistrates Commission for further attention. I am, however,
reluctant to do that in view of the fact that I have no indication
that there have been other complaints about tardiness in dealing
with
review matters against the magistrate in question. I trust though
that he will in future make sure to deal with review matters
more
promptly.
Mr
Menigo also correctly pointed out that the sentence should be set
aside and referred back to the magistrate in order for a proper-
enquiry to be held for the determination of the value of the vehicle
at the time of the commission of the offence and to reconsider
the
amount of compensation that is to be paid. I agree with that
suggestion. I may finally point out that no period is mentioned
for
the suspension of the sentence and that this should also be attended
to.
I
accordingly propose the following order:
1.
The conviction is confirmed but the sentence is set aside and the
matter is referred back to the magistrate for a proper inquiry
to be
held in order to hear evidence and receive documentation so that the
value of the vehicle at the time of the commission of
the offence may
be determined. Any amounts already paid by the accused are to be
taken into account in determining the amount outstanding
and the
period of suspension must be mentioned if sentence is imposed afresh.
F
G PRELLER
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
W
L SERITI
JUDGE
OF THE NORTH GAUTENG HIGH COURT