S v Mathabela [2009] ZAFSHC 134 (19 November 2009)

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[2009] ZAFSHC 134
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S v Mathabela [2009] ZAFSHC 134 (19 November 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No.: 559/2009
In
the case between:
THE
STATE
and
MOSES
MATHABELA
_____________________________________________________
CORAM:
MOLEMELA
et
MOLOI, JJ
_____________________________________________________
JUDGMENT:
MOLEMELA, J
_____________________________________________________
DELIVERED
ON:
19 NOVEMBER 2009
_____________________________________________________
[1]
This
is a special review as contemplated in the provisions of
section
304(4)
of the
Criminal Procedure Act 51 of 1977
.
[2] The
eight accused persons, all being adult males, were charged with
contravention of
section 1(1)
read with sections 1(1A), 1(2) and 2 of
the Trespass Act 6 of 1959 (“the Act”) and further read with
section 250(1)(d) of the
Criminal Procedure Act 51 of 1977
(trespassing). They all pleaded guilty and averred that they had
entered the President Steyn Mine
with the intention of engaging in
illegal activities. They were found guilty as charged and sentenced
to 28 months’ imprisonment
wholly suspended for 5 years.
[3] The
presiding magistrate thereafter referred the matter to the High Court
on special review with the request that the sentence
be set aside.
The magistrate based this request on the following:
“
I noticed that I
acted ultra vires since the
Act
only empowers me to impose a maximum of 24 months imprisonment. I
humbly request that the sentences of 28 months’ imprisonment
be set
aside and be replaced with the one of 24 months imprisonment which is
wholly suspended for 5 years on the same conditions.
It would
however serve no purpose to revert the matter back to me for
sentencing, since it will be difficult to trace the accused
because
some of them are foreigners and might have returned to their
countries of origin.”
[4] I
agree with the magistrate that she acted
ultra
vires
by imposing a heavier sentence than the maximum sentence contemplated
in the Act. The said sentence is consequently not a competent
sentence and falls to be set aside.
[5] I accordingly make
the following order:
ORDER:
The conviction of the
accused is confirmed.
The sentence is set
aside and replaced with the following:
24
months imprisonment wholly suspended for 5 years on condition that
the accused is not
convicted
of contravention of section 1(1) read with sections 1(1A), 1(2) and 2
of the Trespass Act 6 of 1959 committed during the
period of
suspension.
__________________
M. B. MOLEMELA, J
I
concur.
___
___________
K
.
J. MOLOI, J
/EM