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[2004] ZAFSHC 19
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S v Fokane (126/2004) [2004] ZAFSHC 19 (25 March 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No.: 126/2004
In
the review between:
THE
STATE
and
PONKI
FOKANE
___________________________________________________________
CORAM:
WRIGHT
et
VAN
DER MERWE, JJ
___________________________________________________________
JUDGMENT
BY
: VAN DER MERWE, J
___________________________________________________________
DELIVERED
ON: 25 MARCH 2004
___________________________________________________________
[1] The accused in this matter was charged in the
Magistrateâs Court for the district of Witsieshoek, held at
Makoane, with assault
with intent to do grievous bodily harm. It was
alleged that the accused hit the complainant with a bottle on the
head.
[2] At the trial the accused was assisted by a legal
representative. The accused pleaded guilty to this charge. He was
thereafter
found guilty as charged. No questioning in terms of
section 112(1)(b) of the Criminal Procedure Act, No.51 of 1977 (âthe
Actâ)
took place nor was a written statement handed in in terms of
section 112(2) of the Act. On 6 February 2003 the accused was
nevertheless
sentenced to nine months imprisonment.
[3] The record reached the offices of the Registrar for
purposes of review only on 27 January 2004. Reasons for conviction
and sentence
requested in terms of the provisions of section 304(4)
of the Act on 28 January 2004, reached the Registrar on 17 March
2004. In
these reasons the Magistrate explained that the matter was
not sent for automatic review as the accused was legally represented,
and that it was sent for review after judicial assessment officers
discovered that the sentence was incompetent. The Magistrate
confirmed that the accused must have already served the sentence by
then.
[4] The Magistrate states that the accused assaulted a
member of the police who acted in the execution of his duties and
that accused
therefore committed a serious crime. It must be
accepted therefore that the Magistrate was of the opinion that the
offence merits
punishment in terms of section 112(1)(b) and not in
terms of section 112(1)(a) of the Act. It follows that the
conviction and sentence
of the accused must be set aside on review on
the ground that the provisions of section 112(1)(b) or 112(2) were
not complied with.
Despite the fact that the accused had already
served the sentence and despite the inconvenience thereof, section
312 of the Act
obliges me to remit the case to the Magistrate and to
direct that the Magistrate comply with the provisions of section
112(1)(b)
or 112(2) of the Act. If the accused is sentenced afresh,
the sentence that he had already served will obviously be a very
important
consideration.
[5] The conviction and sentence are set aside and the
matter is remitted to the Magistrate. The Magistrate is directed to
comply with
the provisions of section 112(1)(b) or 112(2) of Act
No.51 of 1977.
__________________________
C.H.G. VAN DER MERWE, J
I CONCUR
________________
G.F. WRIGHT, J
/scd