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2008
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[2008] ZAFSHC 44
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S v Siprian and Others (294/2008) [2008] ZAFSHC 44 (12 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special Review No. :
294/2008
In
the case between:
THE
STATE
versus
1.
MQUSHAWANA
SIPRIAN
2.
BONGANE
MLAMBO
3.
AUDRY
MAKARAPA
4.
THABO
NKEYANE
5.
NOMZO
SENOABILE
6.
PARTSON
MAGEZI
7.
LEFALI
MAPHIRI
8.
THAPELO
NTLALA
_____________________________________________________
CORAM:
H.M.
MUSI, JP
et
K.J. MOLOI, AJ
JUDGMENT:
K.J.
MOLOI, AJ
DELIVERED ON:
12
JUNE 2008
[1] The
eight accused persons were each convicted and sentenced in the
Magistrateâs Court, Welkom, of the offences of trespass in
contravention of section 1(1) of Act No. 6 of 1959 and theft from
President Steyn Mine. They were all legally represented. They
all
pleaded guilty to both charges and submitted statements in terms of
section 112
(2) of the
Criminal Procedure Act 51 of 1977
. They were
each sentenced to twenty eight months imprisonment for trespass which
was wholly suspended conditionally for a period
of five (5) years and
to a fine of R4 000.00 or eight (8) months imprisonment for theft
wholly suspended conditionally for a period
of five (5) years.
[2] The magistrate
referred the matter to this court as a special review in terms of
section 304
A of the
Criminal Procedure Act No. 51 of 1977
.
[3] This
court cannot consider the matter under
section 304
A of Act 51 of
1977 as the accused had already been sentenced. The said section
authorises a review only after conviction but
before
sentence is passed when the magistrate âis of the opinion that the
proceedings in respect of which he brought in a conviction are
not in
accordance with justice, or that doubt exists whether the proceedings
are in accordance with justice.â If that is found
to be the case
by this court, the conviction would be set aside and the matter
remitted to the magistrate for a trial
de
novo
.
[4] In the present matter
the conviction was made in accordance with justice, the accused,
being duly represented, having pleaded
guilty and admitted all the
elements of the crime charged.
[5] We
dealt with the matter in terms of section 304 (2) of Act 51 of 1977
and found that the proceedings are not in accordance with
justice in
that the sentence of twenty eight months imprisonment wholly
suspended conditionally for five years imposed by the magistrate
in
respect of each accused person on the count of trespass was in excess
of the maximum sentence prescribed in section 3 of the Trespass
Act,
No. 6 of 1959. The said section prescribes the maximum sentence to
be a fine of R2 000.00 or imprisonment
not
exceeding
two years. Two years constitutes twenty four months.
[6] Section 304 (2)
requires us to seek from the sentencing magistrate the reasons for
the sentence imposed and lay the record of
the proceedings together
with the statement consisting of the magistrateâs reasons before a
court consisting of two judges sitting
as a court of appeal. The
section contains a proviso that a court may dispense with a
magistrateâs reasons if it is of opinion
that the sentence imposed
is clearly not in accordance with justice and that the convicted
person may be prejudiced if a further
delay is allowed.
[7] That
the sentence is excessive of the prescribed maximum is obvious and
the attendant prejudice to the accused persons is equally
obvious.
The matter was referred to this court by the magistrate himself
presumably on realising that the sentence is not in accordance
with
justice, it being in excess of the legislated maximum. He did so
under the section having no application to the proceedings.
However, requiring him to state the reasons would result in an
unnecessary delay and prejudice to the accused.
[8]
Section 304
(2) (c)
of the
Criminal Procedure Act 51 of 1977
authorises this court to
interfere with the sentence imposed by the magistrate where such
sentence is not in accordance with justice.
As a consequence the
following order is made:
1. The conviction on
the charge of trespass is confirmed;
2. The
sentence on the charge of trespass is set aside;
3. The
following sentence on the charge of trespass is imposed in respect of
each accused:
â
Sentenced
to twenty four (24) months imprisonment wholly suspended for a period
of five (5) years on condition that accused
is
not found guilty of contravening
section 1
(1) of Act No. 6 of 1959
committed during the period of suspension.
4. The conviction and
sentence on the charge of theft in respect of each accused are
confirmed.
________________
K.J. MOLOI, AJ
I concur
_________________
H.M.
MUSI, JP
/ms