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[2008] ZAFSHC 83
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S v Mphulanyane (454/2008) [2008] ZAFSHC 83 (14 August 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 454/2008
In the special review
between:
THE STATE
and
JOHANNES
MPHULANYANE
_____________________________________________________
CORAM:
WRIGHT, J
et
RAMPAI, J
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
14 AUGUST 2008
_____________________________________________________
[1] The matter came to
this court by way of a special review. It originates from the
Bloemfontein Regional Court where the accused
was convicted on a
charge or indecent assault which he committed at Brandfort on the 2
nd
March 2007 against X, a three year old minor girl child. He was
convicted on his plea on 27 February 2008.
[2] On the 28
th
May 2008 Ms R. M. Sepato, the acting regional court magistrate
sentenced the accused as follows:
“
And further, that you shall
perform community service
at Tshepong Community Centre, located at the National Hospital,
Bloemfontein.
This Tshepong Centre is where you will
find victims of sexual abuse and other forms of assault. This is
where you will be paying
back to the community of Bloemfontein, of
Free State, of South Africa, the larger mankind.
The type of community service that you
shall be performing there shall be; cleaning services and any such
related duties as shall
be assigned to you by a person in charge of
the centre.
This community
service you shall be executing for a period of one year,
that is, for twelve months from today.
And all this shall be monitored by the
correctional supervision officer or any such person as shall be
delegated by the commissioner
of correctional services. The said
community service of twelve months shall be carried out in, at the
least,
four hours of duty
per day which shall commence from eight until twelve noon
on the days that shall be determined by the correctional officer or
any such person delegated by the commissioner of correctional
services.
Further, you shall
take
part in any program
that
shall be prescribed to you as it may be necessary by the said
correctional officer or a delegate of the commissioner of
correctional
services.
And further, that you shall observe
any other condition or order of the correctional officer or a
delegate of the commissioner of
correctional services.”
[3] Two days later on 30
May 2008 the accused once again appeared before the trial court. As
before he was legally represented
by a certain Advocate Mazibukwana.
The court
a
quo
mero
motu
then proceeded to amend the sentence as follows:
“
The sentence reads that the
accused be sentenced to two years of correctional supervision with
full house detention. Further, that
he shall perform community
services at Tshepong Victim Support Centre at the National Hospital,
Bloemfontein, doing cleaning services
and any such related duties as
shall be assigned to him by the officer in charge there for twelve
months from the 28
th
of May. Same shall be monitored by the correctional supervising
officer or any other person delegated by the commissioner of
correctional services. The said community service shall be at
four
hours per day between eight and twelve noon for two days in the week
only.
”
[4] The practical effect
of the amendment was that the original sentence of 4 hours by 7 days
per week community service for a period
of 1 year as from the 28 May
2008 was drastically reduced to the performance of community service
of 4 hours by 2 days per week
for a period of 1 year retrospectively
from the 28
th
May 2008.
[5] In a letter dated the
10
th
July 2008 addressed to the registrar, Mr K. M. Lalbahadur, the
regional court president wrote:
“
The Acting Regional Court
Magistrate at Bloemfontein, Ms R M Sepato convicted the above Accused
on 27
th
February 2008. The matter was then postponed to 28
th
May 2008 for sentence. The Accused was duly sentenced on the said
day. However on 30
th
May 2008 the Accused was recalled to court and re-sentenced on the
same matter.
Mr. M I Menong who is Ms Sepato’s
mentor is of the view that this procedure is indeed flawed and as
such after the Accused
was sentenced the Presiding Officer was
functus officio
and as such the sentence imposed on the 30
th
May 2008 is not a competent one. I attach hereto Mr Mernong’s
memo to Ms Sepato and her reply thereto.
Under the circumstances kindly have
the matter placed before a reviewing Judge to have the sentence set
aside and the matter referred
back to the said Magistrate to sentence
the Accused properly.”
[6] In paragraph 3 of the
memorandum he addressed to Ms Sepato on the 24
th
June 2008, Mr Menong, the regional court magistrate, expressed the
view that the adjustment which the trial magistrate effected
on the
30 May 2008 went beyond the powers which the court has in terms of
section 298,
Criminal Procedure Act No. 51 of 1977
to correct errors.
[7] In paragraph 3 of the
memorandum she wrote on the 9
th
July 2008 in response to Mr Menong’s memorandum, Ms Sepato
explained that she acted in terms of
section 298
to correct the
sentence. What transpired in the court
a
quo
on
the 30
th
May 2008 is recorded as “sentence amendment”. This
heading, in my view, does not correctly reflect the substantive
nature of what really happened on the day in question. The trial
magistrate purported to correct the sentence it previously imposed
on
the accused. However, the court did more than just correcting the
sentence. It effectively replaced the original sentence
with a
completely different and a new sentence. This was impermissible. It
was indeed incompetent for the court to do so. The
substantial
reduction of the sentence from 7 days per week to 2 days cannot
convincingly be described or regarded as a corrective
exercise.
[8] Such a drastic
alteration cannot be seen as a correction purely intended to clarify
the duration of the community service as
the learned magistrate later
explained. The thrust of the whole exercise was to drastically
reduce the sentence. The trial court
had no powers to reconsider its
own decision as it did. The court was
functus
officio
and could not proceed the way it did, even if it was prompted to do
so by the subsequent realisation that the sentence it imposed
on the
accused in the first place was too burdensome or cumbersome regard
being had to the fact that he lived at Botshabelo but
had to perform
such community service in Bloemfontein far away from his residence.
I am not certain as to why the accused was
not ordered to performed
community service where he lived. It is certainly undesirable for an
offender to incur an expense by
travelling from one town to another
town far away for the purpose of serving a sentence.
[9] Where a magistrate is
troubled by the pangs of her conscience because after imposing the
sentence, she feels the sentence was
too onerous, the correct
procedure is to refer the case to relevant High Court on special
review. The referral must contain reasons
why the unwanted order was
made in the first place, the reasons why such order is subsequently
considered too onerous or disproportionate
to the crime and the
alternative new order proposed to replace the old order. If the
review judges are satisfied with the motivation
given by the
magistrate then they may nullify the order concerned and substitute
it with such order as they may deem appropriate
in the circumstances.
[10]
Section 298
, Act No.
51 of 1977 provides that when a wrong sentence is imposed by mistake,
the court may amend the sentence before or immediately
after it is
recorded. Ideally the amendment has to be done while the court is
still on the bench. As to the prerequisite and
the construction of
the section, see Du Toit
et
al
:
Commentary on the
Criminal Procedure Act at
28-53/4 and the
authorities there cited.
“
The section cannot be used by
the court to substitute another sentence for the original one, or to
set aside the proceedings related
to sentence.
R
v PHIKE
1953 (1) SA 591
(O) 592B;
S V ZWANE &
ANOTHER
1967 (2) PH
H295 (N);
DU TOIT
178;
see also Du Toit 178 – 179”
[11] In the light of the
aforegoing I am inclined to set aside the subsequent sentence imposed
on the accused on the 20
th
May 2008 on the grounds that the magistrate was not competent to
replace the original sentence she imposed on the accused with
the
subsequent sentence as she did. As regards the original sentence I
am of the view that it too cannot be allowed to stand.
I am inclined
to set it aside on the grounds that it is financially too burdensome
to the accused.
[12] Such a burdensome
sentence which obliges the accused to travel a considerable distance
at great expense in order to perform
community service in terms of
the court order may not be easy to comply with. For instance, the
accused might fail to reach the
victim centre in Bloemfontein on
account of one or other strike by bus drivers or taxi drivers or
community boycotts of both the
busses and the taxis in protest
against increased bus fairs or taxi fairs. Such community boycotts
or strikes by workers are not
uncommon in our communities.
[13] In addition to the
aforegoing, it is not unthinkable that the accused might not be able
to travel to the victim centre in Bloemfontein
because he might not
have the money for the necessary taxi fair or bus fair. In the cause
of sentencing the accused the magistrate
said:
“
I am informed, both in the
report and by your legal representative, that you are not employed
fulltime.”
Now a person who is not
permanently employed would surely struggle to afford the travelling
expenses. It seems to me that in the
circumstances, the accused
might find it difficult to comply with the court order and that his
failure to comply will expose him
to further prosecution which would
lead to his imprisonment, a sentence which the court below considered
unsuitable in this case.
[14] In the circumstances
I make the following order:
14.1 The subsequent
sentence imposed on the accused on the 30
th
May 2008 is set aside.
14.2 The original
sentence imposed on the accused on the accused on the 28
th
May 2008 is also set aside.
14.3 The case is remitted
to the trial magistrate to sentence the accused afresh after
investigating the possibility of the accused
performing community
service in the town where he resides.
_______________
M. H. RAMPAI, J
I concur.
_______________
G. F. WRIGHT, J
/em