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2008
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[2008] ZAFSHC 67
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S v Nkazane (296/08) [2008] ZAFSHC 67 (4 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 296/08
In
the review between:-
THE
STATE
versus
NCEBA
NKAZANE
_____________________________________________________
CORAM:
BECKLEY,
J
et
MABESELE,
AJ
_____________________________________________________
JUDGMENT:
BECKLEY,
J
_____________________________________________________
DELIVERED
ON:
4
SEPTEMBER 2008
_____________________________________________________
[1] The accused in this
matter was charged with a contravention of section 1(1) of Act No. 6
of 1959. He pleaded guilty and was
consequently convicted of the
offence, commonly known as trespassing. Having been convicted, the
accused was sentenced to imprisonment
for a period of 28 (twenty
eight) months, which imprisonment was wholly suspended for a period
of 5 (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] After the sentence
had been imposed, the magistrate realised 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 or to imprisonment for a
period not exceeding 2 (two) years or both such fine and such
imprisonment. It is clear that the
sentence imposed, namely one of
28 (twenty eight) months, exceeds the maximum sentence determined in
terms of the relevant provisions
of the Act. The magistrate has
therefore requested that the sentence be set aside and replaced with
a sentence of 24 (twenty four)
months, wholly suspended in the same
conditions as the current sentence.
[3] It is clear that the
sentence must therefore be set aside and it is in the interest of
justice that this Court imposes a sentence
afresh, instead of
referring the matter back to the trial magistrate.
[4] The magistrate has
suggested that the sentence of 28 (twenty eight) months imprisonment
be set aside and replaced with one of
24 (twenty four) months
imprisonment, being the maximum term of imprisonment prescribed in
the relevant legislation. I cannot,
unfortunately, accede to that
request, having regard to the fact that the 24 (twenty four) months
as proposed by the magistrate
is the maximum term of imprisonment.
It is clear that he is a first offender and, moreover, pleaded guilty
to the offence. In
the circumstances a period of imprisonment of 12
(twelve) months wholly suspended for a period of 5 (five) years,
would be appropriate.
[5] In the result the
conviction is confirmed but the sentence is set aside and replaced
with a sentence of 12 (twelve) months imprisonment
wholly suspended
for 5 (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.
_______________
A.P. BECKLEY, J
I concur.
__________________
M.M. MABESELE, AJ
/sp