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South Africa: Free State High Court, Bloemfontein
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[2009] ZAFSHC 133
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Chen v S (602/2009) [2009] ZAFSHC 133 (12 November 2009)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
Case
No. : 602/2009
In
the case between:-
JIN
CHEN
and
THE
STATE
_______________________________________________________
CORAM:
VAN DER MERWE, J
et
JORDAAN, J
_______________________________________________________
JUDGMENT
BY:
JORDAAN, J
_______________________________________________________
DELIVERED
ON:
12
NOVEMBER 2009
______________________________________________________
[1]
The
accused was charged with, pleaded guilty to and found guilty of
contravention of section 3(b)(iv) of the Prevention and combating
of
Corrupt Activities Act, No. 12 of 2004. The magistrate sentenced him
to a fine of R13 000,00 or in default imprisonment of 3
years plus a
further 3 years imprisonment, wholly suspended for 5 years on certain
conditions.
[2] After
sentencing the accused the magistrate realised that she exceeded her
jurisdiction and submitted the matter for special review
in terms of
section 304
of the
Criminal Procedure Act, No. 51 of 1977
. The
magistrate notes that she was of intention to sentencing the accused
to imprisonment of 3 years with a further 2 years suspended
on
certain conditions and only realised that the sentence that was
passed exceeded her jurisdiction. Since, in terms of
section
26(1)(a)(iii)
of the aforesaid act, the magistrate was only entitled
to impose a fine or imprisonment to a maximum of 5 years.
[3] The magistrate
requests this court to rectify the sentence and proposes that the
following sentence be imposed:
â
To
pay as sum of R13 000,00 (thirteen thousand rand) only or in default
to undergo 3 (three) years imprisonment plus a further 2 (two)
years
imprisonment which is wholly suspended for 5 years on condition that
the accused is not again convicted of contravention of
section
3(b)(iv)
of the Prevention and combating of Corrupt Activities Act,
No. 12 of 2004 committed during the period of suspension.â
[4] The sentence as
proposed by the learned magistrate creates the impression that the
further two years suspended sentence would
be imposed in addition to
the payment of the fine. In view of the fact that section 26, refer
to above, only provides for a fine
or imprisonment and not both, such
a sentence is not legally permissible.
[5] In view of the
aforesaid the sentence has to be set aside and substituted with a
sentence that gives effect to the initial intention
of the learned
magistrate.
[6] In the result the
conviction is confirmed but the sentence is set aside and substituted
with the following:
The accused is sentence
to a fine of R13 000,00 (thirteen thousand rand) or, in default of
payment thereof, to undergo 5 (five) years
imprisonments of which 2
(two) years is wholly suspended for a period of five years on
condition that the accused is not again convicted
of contravention of
section 3(b)(iv) of the Prevention and combating of Corrupt
Activities Act, No. 12 of 2004 committed during the
period of
suspension.
___
____________
A
.
F. JORDAAN, J
I
agree.
______
___________________
C.
H. G. VAN DER MERWE, J
/EM