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[2009] ZAFSHC 1
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S v Koloza and Another (809/08) [2009] ZAFSHC 1 (8 January 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
809/08
In the review between:-
THE STATE
and
A.
KOLOZA AND ANOTHER
_____________________________________________________
CORAM:
CILLIé,
J
et
RAMPAI,
J
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
8
JANUARY 2009
_____________________________________________________
[1]
The
matter came by way of a special review in terms of section 304(4) Act
No. 51 of 1977. The two accused persons, namely Phikile
Alfred
Koloza accused 2 and Pule Petrus Maphutsi accused 3, were tried in
the Parys Disctrict Court where they were convicted on
26 August
2008.
[2] The charge against
them was that they unlawfully and intentionally stole four Brahman
valued at R38 000.00 on Zandfontein farm
in the district of Parys on
24 August 2007. The animals were owned or lawfully possessed by A.M.
Smit.
[3] Instead
of sentencing the accused, the district magistrate transferred the
case to the Kroonstad Regional Court in terms of
section 116(1)(b)
Act No. 51 of 1977 for sentence. He was of the opinion that, in view
of their previous convictions, each of
them deserved a sentence which
exceeded the penal jurisdiction of a district court.
[4] As
regards accused 2, the regional magistrate, Mr. G.J. Visagie, had no
insurmountable problems about the transfer, although
only one
previous conviction was still current. The rest had already lapsed â
section 271A Act No. 51 of 1977.
[5] As
regards accused 3, there was a problem. Unlike accused 2, accused 3
denied the previous convictions attributed to him.
Notwithstanding
such wholesome denial and the prosecutionâs failure to prove the
alleged previous convictions, the district magistrate
nonetheless
transferred accused 3 to the regional court for sentence. By so
doing, the district magistrate implicitly accepted,
as true and
correct, the disputed and unproven previous convictions against
accused 3. The underlying reason for the decision
to transfer him
entailed the notion that he had a blameworthy track record of crimes
which justified the imposition of a more severe
sentence than the
district court was empowered to impose. Obviously the transfer
seriously prejudiced accused 3. Since it was
an irregular procedural
step, the transfer cannot be let to stand.
[6] The
alleged previous convictions should first have been proven before the
transfer of accused 3 in terms of section 116(1)(b)
Act No. 51 of
1977 â
vide
S
v CELE AND OTHERS
1994 (1) SACR 616
(NPD);
S
v NGUBANE
1991 (1) SACR 163
(NPD); S v BEYERS
1978 (4) SA 816
(NCD);
S
v KGOMO
1978 (2) SA 946
(TPD) on 947.
[7] The
regional and the district magistrates are agreed that the transfer in
respect of accused 3 should be set aside as an irregular
process. In
the circumstances, I am inclined to agree. The nullification of the
transfer will enable the State to either prove
the alleged previous
convictions or withdraw them, if it cannot. If the state succeeds,
then accused 3 can at a later stage be
transferred to the regional
court for sentence. If the State fails, then in that event, the
district court itself will have to
sentence him.
[8] Accordingly I make
the following order:
8.1 The
transfer of accused 3 to the regional court for sentence is set
aside.
8.2 The
case of accused 3 must be remitted from the regional court to the
district court to be dealt with in accordance with the
guidelines
outlined in this judgment.
___________
___
M.H.
RAMPAI, J
I
concur.
__________
__
C.B.
CILLIé
,
J
/sp