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[2008] ZAWCHC 193
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Ricardo v S (A227/2007) [2008] ZAWCHC 193 (9 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A227/2007
DATE
:
9
MAY 2008
In the matter between:
JACOB
RICARDO
Appellant
and
THE
STATE
Respondent
JUDGMENT
BOZALEK.
J:
[1]
The appellant was convicted in the George Regional Court on one count
of murder and one count of attempted robbery. He was sentenced
on 24
October 2006 to 15 years' imprisonment on the count of murder and
five years' imprisonment on the robbery count. The magistrate
ordered
that the two sentences run concurrently. With the leave of the
magistrate, the appellant now appeals against both his convictions
and sentences. The appellant was apprised in the charge sheet that
the provisions of section 51 of Act 105 of 1997 ("the Act"),
colloquially known as the minimum sentence Act, woutd be applicable
to both the murder count and the robbery count.
[2]
The latter count averred that aggravating circumstances were present
as described in section 1 of Act 51 of 1977 in that a dangerous
weapon was used in the robbery, to wit a knife and/or a bottelkop
(broken bottle). However, in sentencing the appellant on count
1, the
magistrate misdirected himself in finding that in the absence of
"substantia! and compelling circumstances" as
envisaged in
the Act, he was compelled to impose a minimum sentence of 15 years'
imprisonment. In fact, regard being had to section
(c)(ii) of Part I
of Schedule 2 to the Act read with section 52(1)(i) of the Act, the
appellant qualified for a minimum sentence
of life imprisonment
inasmuch as he had been convicted of attempted robbery with
aggravating circumstances as above described.
[3]
Although the magistrate did not say so in terms, it is clear that the
appellant was so convicted in that not only was the charge
one of
robbery with aggravating circumstances, but the evidence accepted by
the magistrate proved that the appellant was party
to a robbery in
which a knife and at least one broken bottle were used to inflict the
fatal injuries to the deceased. In the circumstances
the magistrate
had no jurisdiction to sentence the appellant. In terms of section
52(1) of the Act, which is cast in peremptory
language, the
magistrate was obliged to stop the proceedings and commit the
appellant for sentence by the High Court {see in this
regard
S
v Sekgobela & Four Others
.
2006(2) SACR 309 (WLD).) in those matters, in similar circumstances
to the present matter,
Mbha,
J
,
Satchwell.
J
concurring, held that the appropriate course of action was to set
aside the sentences irregularly imposed by the magistrate and
refer
the matters to a single judge of the High Court to be dealt with in
terms of section 52 of the Act.
[4]
The Court held further that it would be inadvisable for it, as a
Court of appeal, to express an opinion on the merits of the
appeal
since a single judge of the High Court, to whom the matter must
ultimately be referred, would have to decide whether or
not to
confirm the convictions or convictions. Such a decision should not be
influenced by any judgment or opinion of the Court
of appeal. I am in
respectful agreement with the approach of the learned judges, but
with the qualification that there may well
be cases where it is so
clear to the Court of appeal that the conviction or convictions
cannot stand, that it would be appropriate
to uphold the appeal there
and then and set aside the conviction and sentences without referring
the proceedings to a single judge
of the High Court. (See in this
regard
S
v Liau
2005(1) SACR 498 (T).)
[5]
The present matter is, however, not such a case and I consider
therefore that, tn the ordinary course, the appropriate course
would
be to set the sentences aside and refer the matter to a single judge
of the High Court. In my view, it would be appropriate
to set aside
both sentences since the sentence imposed by the magistrate on the
count of attempted robbery was linked to and influenced
by the
sentence imposed on the count of murder.
[6]
This state of affairs is, however, potentially affected by the fact
that with effect from 31 December 2007 the minimum sentence
dispensation has been changed The Regional Court now has jurisdiction
to impose a sentence of life imprisonment on persons whom
it has
convicted of offences referred to in Part I of Schedule 2 to the Act
The new dispensation has been affected by the provisions
of the
Criminal Law (Sentencing) Act 38 of 2007. However, one of the
functions which that Act serves is to insert into the Act,
namely the
Criminal Law Amendment Act 105 of 1997
, a savings clause in the form
of
section 53(3).
That savings clause, insofar as it is relevant,
reads as follows: "Any appeal against -
(a)
a
conviction of an offence
(i)
referred
to in Schedule 2 of this Act and the resultant sentence imposed in
terms of section 51; or
(b)
a
sentence imposed in terms of section 51 or 52A, as the case may be,
shall be continued and concluded as if section 51 and 51A
had at all
relevant times been in operation".
The
effect of that savings provision is then, it appears to me, to
preserve the earlier dispensation in aspic, as it were, for the
purposes of the determination of an appeal against a conviction or
sentence imposed under the pre-2008 dispensation. A necessary
consequence of this, in my view, is that this Court remains obliged
to set aside the incompetent sentence or sentences imposed
by the
magistrate and remit the matter to a single judge of the High Court
to deal with the confirmation of the convictions and
sentencing.
[7]
In the result I would set aside the incompetent sentences, strike the
appeal off the roll and refer the matter to a single judge
of the
High Court.
IRISH,
AJ
:
I agree.
IRISH,
AJ
BOZALEK,
J
:
The following order is made:
The
sentence of 15 years' imprisonment and five years' imprisonment
imposed by the trial Court in respect of the counts of murder
and
attempted robbery respectively are set aside.
The
appeal is struck off the roll.
The
matter is referred to a single judge of the High Court to proceed in
terms of section 52 (as it then was) of Act 105 of 1997.
BOZALEK, J