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2024
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[2024] ZAFSHC 247
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S v Mokone (R23/2024) [2024] ZAFSHC 247; 2025 (2) SACR 318 (FB) (21 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/
Not
reportable
Case
number: R23/2024
In
the matter between:
THE
STATE
And
LEBOHANG
EMMANUEL MOKONE
Coram:
Loubser J et Cronje AJ
Heard:
5 August 2024
Delivered:
21 August 2024
Summary:
Jurisdiction of Magistrate’s Court to
adjudicate cases up to point of conviction where minimum
sentences are applicable – whether regional
Court is bound by mitigating and aggravating factors already adduced
in Magistrate’s
Court when matter is referred for sentence
ORDER
1.
The conviction of the accused in the district magistrate’s
court is confirmed.
2.
The regional court must proceed to finalize the matter in an
unrestricted manner.
JUDGMENT
LOUBSER
J
(Cronje, AJ concurring)
[1]
This
matter came before me in the form of a special review referred to
this court by the regional magistrate of Welkom in terms
of Section
304 of the Criminal Procedure Act
[1]
(‘the CPA’). The issues raised by the regional magistrate
are the following: Firstly, whether a district magistrate
has the
necessary jurisdiction to hear a matter where minimum sentences
exceeding the magistrate’s jurisdiction are applicable.
Secondly, where the magistrate has referred the matter to the
regional court for sentencing after conviction, whether the regional
court is not perhaps restricted to the mitigating and aggravating
factors already adduced in the magistrate’s court with
a view
to sentence.
[2]
The accused was charged in the Winburg
magistrate’s court of assault with the intent to do grievous
bodily harm, read with
the provisions of section 51(2)(
b
)
and Part 3 of Schedule 2, as amended, of Act 105 of 1997, which
provides for the imposition of certain minimum sentences for certain
offences. One of those offences is assault to do grievous bodily harm
in circumstances where the victim is or was in a domestic
relationship. The accused was therefore eligible to be sentenced to
ten years imprisonment in the absence of a finding of compelling
reasons justifying departure from the mandatory sentencing regime.
The ordinary penal jurisdiction of a district magistrate’s
court is a maximum of three years imprisonment.
[3]
The accused pleaded not guilty to this
charge, as well as to a second charge relating to the violation of a
domestic violence protection
order. After hearing the evidence
presented by the prosecution and the accused, the presiding
magistrate found the accused guilty
on both counts. The magistrate
thereafter heard submissions relating to mitigating and aggravating
circumstances but instead of
sentencing the accused, she referred the
matter to the regional court for sentencing in terms of the
provisions of section 116(1)
of the CPA. This was done because she
held the view that the offences merited punishment in excess of the
jurisdiction of a magistrate’s
court.
[4]
The regional court magistrate then
requested a review of the proceedings in the trial court as far as
the issues raised by him,
were concerned. In respect of the
jurisdictional competence of the magistrate’s court to hear the
matter in question, the
regional court magistrate referred to the
wording of section 51(2)(
b
)
of Act 105 of 1997, which provides that a regional court or a high
court shall sentence a person convicted of an offence referred
to in
Part 3 of Schedule 2 to certain periods of imprisonment depending on
whether he is a first, second or third offender of such
offence.
[5]
The question is therefore whether only a
regional court or a high court has the competence to hear cases which
carry minimum sentences
after a potential conviction.
[6]
I
am of the view that such a proposition cannot be correct, because the
section in question only refers to the imposition of sentences,
and
not to the hearing of cases on their merits. I find support for this
view in the unreported review judgment in The State v
William
Kobe.
[2]
A very similar
situation to the present matter presented itself in that case, except
that the trial magistrate proceeded
after conviction to sentence the
accused to the relevant minimum sentence, which exceeded the normal
penal jurisdiction of the
magistrate’s court. The review judges
could not find any fault with the conviction, and only set aside the
sentence and committed
the accused for sentence by a regional court
having jurisdiction.
[7]
It follows that in the present case, the
conviction of the accused and his referral to the regional court for
sentence, must stand.
[8]
The
next and final question is whether the regional court would be
restricted to the mitigating and aggravating factors already
adduced
in the magistrate’s court with a view to sentence. Once again,
I am of the view that this cannot be the case. Section
274(1) of the
CPA provides that a court may, before passing sentence, receive such
evidence as it thinks fit in order to inform
itself as to the proper
sentence to be passed. Where a magistrate has heard arguments in
mitigation and thereafter refer the matter
to the regional court for
sentence, the regional court will therefore not be limited to the
material placed before the trial magistrate
and may consider any
further evidence or submission placed before it.
[3]
The regional court should simply proceed to finalize the matter.
[9]
In the premises, the following order is
made:
1 .
The conviction of the accused in the district magistrate’s
court is confirmed.
2.
The regional court must proceed to finalize the matter in an
unrestricted manner.
P.J. LOUBSER, J
I
concur:
P.
R. CRONJE, AJ
[1]
Act
51 of 1977
[2]
Case no 50/2023 in the Gauteng Local Division, Johannesburg, dated
16 January 2024.
[3]
See
in this respect the unreported judgment on review in The State v
Jerome Slingers, Western Cape High Court, case no. 19/2023