IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REVIEW 34/25
In the matter between
THE STATE
V
MOEGAMAT ASHRAAF RAILOUN
Date of Judgment: 12 February 202 5 (to be delivered via email to the respec tive
counsel)
JUDGMENT
______________________________________________________________________
THULARE J
[1] This is a review as envisaged in section 302 (1)(a)(i) of the Criminal Procedures Act ,
1977 (Act No. 51 of 1977) (the CPA). The sentence imposed by the magistrate’s court
was imprisonment which exceeded a period of six months , imposed by a magistrate
who held th at substantive rank for a period of seven years or longer. The accused
initially had legal representation but terminated the mandate of Legal Aid South Africa
before his plea. He was unrepresented during plea, conviction and sentence. The
accused was convicted of two counts and sentenced to three years imprison ment. The
first count related to an alleged contraven tion of a protection order , during which the
second count arose, which was malicious damage to property wherein the accused
damaged a latch and lock of the door of the room in which he ordinarily slept.
[2] One of the primary functional requirements of prosecuting on behalf of the State, a s
well as the responsibility to speak on behalf of the Judicia Authority of the Republic of
South Africa , is to read and write with understanding. The introductory part of count 1
against the accused rea d as follows:
“The State v Mo egamaat Railoun (hereinafter referred to as the accused )
VIOLATION OF A PROTECTION ORDER
That the accused is guilty of contravening Section 17(a) of the Act on Family
Violence 116 of 1998 read with sections 1, 5, 6 and 7 of the said Act
In that an interim protection order/protection order was granted on 18 February
2019 and at Strand whereby …”
South Africa had an Act called Prevention of Family Violence Act, 1993 (Act No.
133 of 1993). This Act only had 9 sections and came into operation on 1
December 1993 . It did not have section 17. The substantive provisions of th at Act
were repealed by the Domestic Violence Act, 1998 (Act No. 116 of 1998 ) which
came into operation on 15 December 1999 and has 22 sections . There is no
legislation called Act on Family Violence and therefore there is no section 17(a)
of the Act on Family Violence 11 6 of 1998 in our law. The accused could not be
competently issued with a protection order, arraigned for and plead guilty to non-
existent legislation. The conviction on count 1 was not in accordanc e with justice.
Whilst technology advanced the smart way of working, including the availab ility of
‘cut and paste’ to alleviate a retyping of the same informa tion, the professional
expertise of legal experts cannot be deferred to computers, especially in t he
criminal justice system where like in this case, there are serious implications to
the liberty of those accused of alleged criminal conduct. The old-fashioned way
of those within the hierarchy of the National Prosecuting Authority in a district to
consider the legal soundness of charge sheets, must remain a noble practice
which stood the test of time. An inductive reading with understa nding, of a charge
sheet is a “MUS T” for a judicial officer before whom an accused appears and
pleads.
[3] The accused was a 44-year-old male who lived with his parents, a wife to whom he
was married for 15 years and his 3 children. He was a qualified mechanical engineer
who could not obtain and sustain employment primarily because of addiction to drugs
and alcohol. He was troublesome at home when he was under the influence of drugs or
alcohol. The family’s attempts to have him instituti onalized for rehabilitation did not help.
He came back from the institutions and fell back into drug and alcohol abuse. This led to
the parents obtaining a protection order against him , simply to stop him from coming
home whilst under the influence of drugs or alcohol. Otherwise, he stayed at home
when he was clean of drugs and sober . Count 1 emanated from him coming home
whilst under the influence of drugs or alcohol. He found the door to his room locked . He
broke the latch and l ock to ent er the bedroom to sleep, which found count 2 of malicious
damage to property , to which he pleaded guilty . He was convicted after section
112(1)(b) of the Criminal {Procedure Act, 1977 (Act No. 51 of 1977) questioning , and
sentenced . In my view, the conviction on count 2 was in accordance with justice .
[4] The magistrate did not indicate that the counts were taken together for purposes of
sentence and simply imposed one sentence . It is not wrong to accept that the sentence
imposed was for both counts. The accused was obviously a source of heartache and
physical discomfort to those whose love for him could not be doubted , to wit , parents,
wife and children. Moreover, there were two previous convictions for the same offence,
in September 2022 and March 2023. If regard is had to the dates that those offences
were committed and the dates of his conviction and sentence, the inescapable
impression was that he also pleaded g uilty in those matters. In the first he was fined
R5000 or 3 months imprisonment which was wholly suspended for 5 years on condition
that he was not convicted of contravention of the terms of the protection order
committed during the period of suspension. In the second previous conviction he was
sentenced to 6 months imprisonment wholly suspended for 5 years on condition that he
was not convicted of contravention of the terms of the protection order committed during
the period of suspension. The second prev ious conviction was committed during the
period of suspension of the first . The threat of a fine or imprisonment did not deter the
accused. The accused did odd jobs as a service manager at a car wash and earned
about R1000 a week. He expressed remorse and indicated that at the time of his
sentencing , it was his 56th day of being clean, in a long time, but that is for the period he
was in custody before the plea. He made an apology to the co urt and to his family,
especially his parents . He was prepared to continue seeking help with Netcare 24 with
the object of rehabilitation.
[5] It seems to me that t his is a matter where the magistrate ought to have sought the
probation officer’s report before sentencing . In the light of the accused’s admitted abuse
of drugs and alcohol , a psycho -social expert opinion would have been helpful . The
damage to the latch and lock of the door may sound trivial, but the impact of the
conduct of the accused on his elderly parents, wife and children surely is the source of
emotional, psychological and social trauma . The harm is immeasurable even in the
absence of visible bl eeding, a w ound or a scar to show . The magistrate did not explore
these avenue s. I am unable to find that the magistrate was wrong in considering direct
imprisonment as a sentencing option under the circumstances. I however hold the view
that this is a matter where the magistrate had to do more than just imprison. The
accused and his family needed help. Section 276(1)(i) of the CPA reads as follows:
“276 Nature of punishments
---
(1) Subject to the provisions of this Act and any other law and of the common
law, the following sentences may be passed upon a person convicted of an
offence, namely -
(i) imprisonment from which such a person may be placed under correctional
supervision in the discretion of the Commissioner or a parole board. ”
In Roman v Williams NO 1998 (1) SA 270 (CPD) at 282F -283D it was said:
“In the first instance, the Appellate Division has emphasized that correctional
supervision is not intended and must not be regarded as a light sentence or ‘soft
option’ as compared with imprisonment.
Correctional supervision is int ended to provide an alternative sentencing option
whereby a wrongdoer who is regarded by a court or the Commissioner to be a
suitable candidate for supervision and rehabilitation may serve his punishment
outside prison walls and within the community.
Like “probation’ as a comparable system is referred to in the United States of
America , it is a community -based punishment based on a probationary
programme designed to assess and exploit the rehabilitation potential of a
probationer.
However , it has been emphasized that punishment and retribution must remain
firmly in place amongst its main objectives.
The essential penal elements of this correctional discipline are house arrest
during specific hours each day, rehabilitation al, educational or psychotherapeutic
programmes, regular community service in various forms, abstinence from
criminal or improper conduct and from use or abuse of alcohol and drugs.
Lastly, of course, constant monitoring is essential for effectiveness. It stands to
reason, for instance , that house arrest and monitoring will only be possible of a
probationer has a fixed address and is able to keep regular hours.
The success of any probationary programme aimed at rehabilitation will
obviously depend on strict adherence to the supervisional conditions, which may
be amended from time to time.
In order to preserve its crucial penal character and, what is equally important, to
retain public respect as an effective punishment and deterrent , correctional
supervision must obviously be strictly administered and constantly monitored,
particularly in respect of house arrest and community service programmes.
The discipline understandably makes heavy demands on the probation er and
placed an even heavier burden on the Commissione r’s staff. ”
Direct imprisonment is not like some hot oven at a fast -food outlet where you simply put
in something raw, and in no time something well-cooked comes out ready for
consumption. In a case like this, the Commissioner for Correctional Services must be
allowed to have the space to assess the accused and design a programme within and
where possible even outside institutionalization and with the assistance of the
community and other experts, to correct the accused . The magistrate must be the first to
kick that ball towards a responsive criminal justice system, especially where a
distressed family needed that response with a son, husband and father who needs
serious attentio n. Other experts must be allowed i nto the sentencing to help a judicial
officer , for judicial officers hold no magic wand. Where necessary, the sentence itself
should also speak to continued expert intervention.
The accused was convicted and sentenced on 27 June 2024. It needs to be reite rated
that it is preferable for one, especially in explaining rights, to have a copy of the
applicable legislation and to read from it to guide the explanation. To drive the point
home, it is perhaps necessary to repeat the last three sentences of the presiding
magistrate as they appear on the transcribed record to understand why reading the
applicable provisions of the Act would have helped :
“The court has heard submissions in your mitigation of sentence, also the
aggravating submissions by the State. The court has come to the conclusion that
it is an applicable sentence to three years imprisonment. If you are unhappy
about the sentence, you may, within 14 days ap peal to the clerk of the court. You
may step down.”
The magistrate did not read the rights of an accused person as set out in the law , and
did not explain them to the accused as they should have been . It was a misdirection
which must be understood to have contributed to the delay in the matter. The fact that
the record now showed that the accused took steps to appeal the sentence, is an
indicator that the accused may have pursued his rights on review within 7 days of the
sentence . The matter was discovered during quality assurance by another magistrate ,
that it ought to have been submitted for review , and was immediately submitted on 30
January 2025. This explained why the matter only found i ts way to a Judge in early
February 2025.
[6] The accused has been in custody for over 7 months. Remitting the matter back to
the magistrate , in my view, would expose the accused to more prejudice especially as
regards an expeditious finality . The period of im prisonment imposed is not long , and the
sentencing as indicated, may require comprehensive and well - researched reports in
order to individualise the sentence to the person of the accused before the court. Whilst
I do so with some reluctance , I deem it pro per to determine what an appropriate
sentence should be. The general approach , which I ordinarily favour, is to remit the
issue of sentence to be resolved by the trial court. For these reasons I would make the
following order:
1. The conviction and senten ce on count 1 is set aside.
2. The conviction on count 2 is confirmed. The sentence on count 2 is set aside
and replaced with the following:
The accused is sentenced to 3 years imprisonment in terms of section 276(1)(i)
of the CPA. The sentence is antedated to 27 June 2024.
______________________________
DM THULARE
JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
_____________________________
ED WILLE
JUDGE OF THE HIGH COURT