S v Afrika (18/2007) [2007] ZANCHC 16 (2 March 2007)

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[2007] ZANCHC 16
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S v Afrika (18/2007) [2007] ZANCHC 16 (2 March 2007)

REPORTABLE: YES/NO
CIRCULATE
AMONGST JUDGES: YES/NO
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AMONGST MAGISTRATES:YES/NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER: 18 /2007
DATE
DELIVERED: 02-03-2007
In
the case of:
THE STATE
And
ISAK
AFRIKA
CORAM: KGOMO
JP et MOLWANTWA AJ
JUDGMENT ON REVIEW
______________________________________________________________________________________
MOLWANTWA
AJ:
1. This is a review matter in terms of section 32 read with 304 of
the Criminal Procedure Act of 51 of 1977. (
“the Act”).
The
accused was charged with housebreaking with intent to steal and
theft. He pleaded guilty and was convicted as charged. He was
sentenced to 16 (sixteen) months imprisonment. He was unrepresented.
2. I was of the view that the sentence was unduly harsh and
inappropriate and directed a query to the Magistrate which entails
the
following:
“
Comments
are requested from the presiding officer with reference to decided
cases including
S
v Holder
1979(2)
SA 70(A);
S v
Quandu en andere
1989(1) SA 715(A);
S
v Collins
1990(1) SACR 577(A): on the following:
1. The accused is a
first offender, at the age of 45 years and he pleaded guilty.
2. The house was not
damaged to any extent that the complainant suffered grave pecuniary
loss to repair it or any part of it.
3. The
accused was employed at the time of his arrest and thus employable.
4. He had been in
custody for two months.
5. Has the presiding
officer not overemphasized the interests of the society over the
other considerations.”
3. The Magistrate complied and I thank her for her
reasons.
4. Notwithstanding the reasons advanced I am of the view that in this
case the Magistrate overemphasized the interests of the society
and
did not attach sufficient weight to the strong personal circumstances
of the accused. I am therefore entitled to interfere with
the
sentence in the manner set out below.
In
the circumstances I make the following order:
Order
1. The conviction of
the accused is hereby confirmed.
2. The sentence imposed by the Magistrate is set aside and
substituted with the following:
“
The
accused is sentenced to 16 (sixteen) months imprisonment of which 12
(twelve) months imprisonment is suspended for 3 (three) years
on
condition that the accused is not convicted of housebreaking with
intent to steal and theft or attempt thereto or an offence involving
dishonesty committed during the period of suspension.”
______________________
B C MOLWANTWA
ACTING JUDGE
NORTHERN CAPE
DIVISION
I concur
_______________________
F D KGOMO
JUDGE PRESIDENT
NORTHERN CAPE DIVISION