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2008
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[2008] ZAFSHC 34
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S v Mothisi (293/08) [2008] ZAFSHC 34 (5 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. : 293/08
In the review between:-
THE STATE
versus
TOBIAS MOTHISI
_____________________________________________________
CORAM:
CILLIé,
J
et
VAN
DER MERWE, J
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE, J
_____________________________________________________
DELIVERED
ON:
5
JUNE 2008
_____________________________________________________
[1] The
accused in this matter was properly convicted upon his plea of guilty
of contravention of section 1(1) of the Trespass Act,
No. 6 of 1959.
The accused was then sentenced to 28 (twenty eight) months
imprisonment, wholly suspended for five years, on condition
that the
accused is not convicted of contravention of section 1 of Act No. 6
of 1959 committed during the period of suspension.
[2] The magistrate
brought the matter to the attention of this court in terms of section
304(4) of the Criminal Procedure Act, No.
51 of 1997. The magistrate
correctly points out that the sentence imposed is incompetent as
section 2 of Act No. 6 of 1959 provides
that any person convicted of
an offence under section 1 thereof shall be liable to a fine not
exceeding R2 000,00 (two thousand rand)
or to imprisonment for a
period not exceeding two years or to both such fine and such
imprisonment. The magistrate therefore requests
that the sentence be
set aside and replaced with a sentence of 24 months imprisonment
wholly suspended for five years on the same
conditions.
[3] The sentence must
therefore be set aside. I agree that it is in the interests of
justice that this court impose sentence afresh.
I am, however, not
satisfied that the maximum sentence of 2 (two) years imprisonment,
albeit suspended, is justified in the circumstances
of this case.
Although the accused unlawfully entered onto mine property for
purposes of illegal mining, he was arrested before
he could
participate in any illegal mining. He pleaded guilty and is a first
offender. In my judgment, a sentence of 1 (one) year
imprisonment,
conditionally suspended for five years, would be appropriate.
[4] Therefore the
conviction is confirmed but the sentence set aside and replaced with
a sentence of 1 (one) year imprisonment wholly
suspended for five
years on condition that the accused is not convicted of contravention
of section 1 of Act No. 6 of 1959, committed
during the period of
suspension.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
____________
C.B.
CILLIé, J
/sp