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[2008] ZAWCHC 2
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S v Williams (V5/07) [2008] ZAWCHC 2; 2009 (1) SACR 192 (C) (4 February 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
High
Court Ref. No.:071235
Case
No.: V5/07
Serial
No.: 17/07
â
REPORTABLEâ
In
the matter between:
THE
STATE
and
GRAILINE WILLIAMS
REVIEW JUDGMENT: 4 FEBRUARY 2008
LE
GRANGE, J:
[1] This matter comes before me by
way of automatic review. The accused appeared before a magistrate in
the District Court of Paarl,
on a charge of fraud and alternatively,
a contravention of
section 12(2), read with section 18 of
the Social Assistance Act, 1992 (Act 59 of 1992) â
(receiving
social assistance from the department of Social Development in the
amount of R12 733.86 knowing that she was not entitled
thereto.)
[2] The main charge was withdrawn
against the accused in the court
a quo
, and the accused
pleaded guilty to the alternative charge. The prosecutor then
indicated to the magistrate that he does not require
the court to
question the accused. The magistrate forthwith applied section 112(1)
(a) of the Criminal Procedure Act, 51 of 1977,
(âthe Actâ)
,
to convict the accused.
[3] In considering an appropriate
sentence, the magistrate imposed the following sentence:-
â
a fine of R12 000 or 8 months
imprisonment, which was totally suspended for 5 years on condition
that the accused â
(a) Is
not convicted of the crimes of Fraud, Theft or a contravention of
section 21 of Act 13 of 2004, committed during the period
of
suspension; and
(b) Repays
the full amount of R12 733-86 minus R570-00, in monthly installments
of R210-00 to the Trust Fund of the Investigation
Unit.â
[4] The sentence imposed by the
magistrate was, in my view, inconsistent with the provisions of
section 112(a)
of the
Criminal Procedure Act. I
elected to raise my
concerns with the magistrate. I also requested the comments of the
Director of Public Prosecutions
(DPP)
in this regard. I wish
to express my gratitude to the Director, Mr de Kock, and in
particular Mr JC Gerber, SC for their comprehensive
memorandum.
[5] The magistrate in his reply was
adamant that the sentence imposed was appropriate and in accordance
with the provisions of
Section 112(1)(a).
The magistrate also made
reference to the fact that the accused was not sentenced to a term of
direct imprisonment.
[6] The provisions of
Section
112(1)(a)
have been discussed and considered in a number of reported
decisions, including decisions of this Division in recent years. See
S v Daniels
1991(1) SACR 449 C;
Commentary on the
Criminal
Procedure Act
by
Du Toit
et al
pg 17-3;
Hiemstra Suid
Afrikaanse Strafproses sesde uitgawe
at pg 333, and the cases
referred to therein. If one has regard to the relevant case law and
legal authority on this issue, there
can be little confusion as to
the correct interpretation of the subsection.
[7] For the purpose of this matter,
it is perhaps necessary to refer to the provisions of
Section
112(1)(a)
again, which provides as follows:-
â
(1)
Where
an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on the
charge and the prosecutor accepts that plea-
(a)
the presiding judge, regional magistrate or magistrate may, if he or
she is of the opinion that the offence does not merit
punishment of
imprisonment or any other form of detention without the option of a
fine or a fine exceeding the amount
determined by the Minister
from time to time by notice in the Gazette, convict the accused in
respect of the offence to which he
or she has pleaded guilty on his
or her plea of guilty only and-
(i) impose
any
competent sentence, other than imprisonment or any other
form of detention without the option of a fine or a fine exceeding
the
amount determined by the Minister from the time to the time by
notice in the Gazette; â³
[8] The Minister determined that the
fine may not exceed the amount of R1500.00. See:
Government Gazette
number 24393 dated 14 February 2003. The
fine imposed by the trial magistrate is clearly not within the
parameters of
section 112(1)
(a) as the fine exceeds the amount fixed
by the Minister in respect of this section. This is also the
submission made by the Director
of Public Prosecutions.
[9] The reference by the magistrate
that the accused was not sentenced to direct imprisonment is rather
surprising. The subsection,
on a proper interpretation, authorizes a
presiding officer to convict an accused on his bare plea of guilty
only in circumstances
where the offence in question does not merit
imprisonment or any other form of detention without the option of a
fine which fine
is presently R 1500.00 as determined by the Minister
,
(see Government Gazette,
supra
) and prohibits, in effect,
the imposition of a sentence of imprisonment that is not coupled with
a fine.
[10] The magistrateâs understanding
and interpretation of the penal provisions of
section 112(1)(a)
is
thus clearly wrong. An improper sentence was imposed that needs to be
set aside.
[11] The contention by the DPP that,
not only the sentence but also the conviction be set aside as a
result of the irregularity
committed by the magistrate is not without
merit. It will be wrong, in my view, to only set aside the sentence
without taking
into consideration the lawfulness of the conviction.
[12] The jurisdictional fact required
by
section 112(1)(a)
, is that the magistrate must be of the opinion
that the offence, an accused pleads guilty to, does not justify a
sentence in excess
of R 1500.00
before
he is entitled
to convict the accused on his plea of guilty. This approach must also
be read in context with the peremptory provision
of
section 112(1)(b)
where a magistrate is compelled to â in the event that he is of the
view that the offence justifies a fine in excess of R 1500.00
â
question the accused with regards to the alleged facts of the matter
in order to ascertain whether the accused admits the allegations
in
the charge on which he pleaded guilty. In this regard see
S v
Addabba; S v Ngeme; S v Van Wyk
1992 (2) SACR 325
T at 329
f-g.
[13] In
casu,
the magistrate
recorded the following reasons for the sentence imposed:-
â
The
accused was not sent to direct imprisonment. He (sic) is a first
offender, is married, unemployed but have a joint income with
her
husband of R950.00 per week. She is willing to pay the amount back
in installments of R210.00 per week. Approximately 43 000
00 people
are abusing the social grant system in South Africa. A to lenient
sentence will have no
determent
(sic) effect. The court also took into account that accused will take
approximately 5 years to pay back the money which
she unlawfully
received. The suspended sentence of R 2 000.00 (sic) or 8 months
imprisonment will have a determent (sic)
effect
on other offenders as on the accused.â
[14] It is abundantly clear from the
recorded reasons that the magistrate considered the offence the
accused pleaded guilty to,
sufficiently serious not to impose a too
lenient sentence, which according to him, will have no deterrent
effect. The magistrate
erred in failing to apply his mind to the
jurisdictional fact required by the subsection before convicting the
accused on her bare
plea of guilty and the conviction can, in terms
of the provisions of the subsection, not be in accordance with
justice.
[15]
Section 112(1)(a)
was, and still
is intended for minor offences and should be used sparingly and only
where it is certain that no injustice will
result from its
application. See:
S v Addabba; S v Ngeme; S v Van Wyk
supra
at 332
e.
[16] The conviction and sentence in
this matter is not in accordance with justice and should be set
aside.
[17] In the result I will make the
following order.
The conviction and sentence is set
aside.
The matter is remitted to the
magistrate to act in terms of the provisions of
section 112(1)(b)
of
the
Criminal Procedure Act, 51 of 1977
.
LE
GRANGE, J
I agree.
____________________
VELDHUIZEN, J