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[2009] ZAGPPHC 296
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S v Machaba and Others (SH91/09) [2009] ZAGPPHC 296 (29 September 2009)
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LVS
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
DATE:
29 September 2009
MAGISTRATE
ELLISRAS
Case
No: SH91/09
Magistrate's
serial no:
High
Court Ref No: 1170
THE
STATE VS FRANS LESIBA MACHABA AND OTHERS
REVIEW
JUDGMENT
BOTHA
J:
This
is a special review submitted by a Regional Magistrate.
The
two accused were charged in the magistrate's court with robbery “read
with the provisions of section 51(2) of the Criminal
Law Amendment
Act 105 of 19S7..." They were represented by an attorney. They
pleaded not guilty but after an erstwhile co-accused
had given
evidence against them, they changed their pleas to guilty. When the
magistrate raised the issue of aggravating circumstances,
the
statements of the accused were amended to include an allegation that
the complainant sustained serious bodily injuries on his
face
Thereafter the two accused were found guilty as charged.
After
the previous convictions of the accused had been proved the
magistrate referred the matter for sentence to the Regional Court
in
terms of section 116 of Act 51 of 1977
The
Regional Magistrate submitted the matter for special review, asking,
that the convictions be set aside and the matter be referred
to the
Regional Court for trial de novo He did so on the following grounds:
(a)
that the accused were not apprised of the consequences of the effect
of section 51(2)
of Act 105 of 1997 and
(b)
that the magistrate had no jurisdiction to hear the matter.
In
view of the fact that the charge referred to section 51(2) of Act 105
of 1997 and in view of the fact that the accused were represented
no
prejudice resulted to the accused from the fact that they were not
specifically warned of the effect of the section. See S v
Cunningham
2004(2) SACR 16(EC) Moreover, as I will show presently they were not
exposed to any prejudice because section 51 (2)
does not apply to a
magistrate s court.
The
Regional Magistrate obviously reasoned that the magistrate had no
jurisdiction to hear the case at all because a magistrate
court
cannot apply section 51(2). In my view that view is wrong. The
position is simply that section 51(2) does not apply to magistrate
s
courts and that it does not bind magistrate's courts. See S v Jimenez
2003(1) SACR 507 at 517 c-d. Section 51(2) did not create
new
offences that may be considered to be beyond the jurisdiction of the
magistrate's court. See S v Legoa 2003(1) SACR (SCA) at
21e-f. The
position is that the accused were charged with robbery and that the
magistrate had the jurisdiction to hear the matter.
It
may be that the magistrate was of the view that she could, by
referring the matter for sentence to the Regional Court to ensure
that section 51(2) be applied by the proper forum. Such a perception
would have been wrong, because the finding that aggravating
circumstances were present must have been made by the court
convicting the accused. See S v Legoa supra at 21d-f.
The
magistrate could not make a finding that would make section 51(2)
applicable and the Regional Magistrate could not supply the
deficiency.
It
is therefore undesirable that cases where section 51(2) may be
applicable should be heard in the magistrates’ court. It
does
not. however, render such trials irregular or illegal. -
The
magistrate was entitled to try and sentence the accused but she was
also entitled, after convicting the accused, to refer the
matter to
the Regional Court for sentence in terms of section 116
As
I have said before, if the magistrate was of the view that the
Regional Court could impose a mandatory minimum sentence in terms
of
section 51(2) she was mistaken. It is however, still possible for the
Regional Court to impose an appropriate sentence within
its normal
jurisdiction That is what the state advocates suggest should be done
and I agree with them.
In
all the circumstances the following order is made:
1.
The conviction of the accused is confirmed.
2.
The matter is referred back to the Regional Court for the imposition
of sentence within its normal jurisdiction,
without reference to
section 51(2) of Act 105 of 1997.
C
BOTHA
JUDGE
OF THE HIGH COURT
I
agree
C.J
EKSTEEN
ACTING
JUDGE OF THE HIGH COURT