Reportable: YES / NO |
Circulate to Judges: YES / NO |
Circulate to Regional Magistrates: YES / NO |
Circulate to Magistrates: YES / NO |
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by ~
<i OF SOU ~
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 22/25
In the matter between:
THE STATE
and
CLEMENT MOTHOBI
Case no: CA & R 23/25
In the matter between:
THE STATE
and
LEBOGANG MOTLHALE
Neutral citation: |S v Mothobi (Case no CA&R22/25);
S v Motihale (Case no CA&R23/25).
Coram: Tlaletsi JP & Stanton J
Delivered: 22 August 2025.
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Summary: Special review in terms of s 304(4) of the Criminal Procedure Act 51 of
1977 — Sentence of imprisonment — Conditions of suspension of sentence to be
not wider than offence of which accused is convicted — Accused convicted of
theft —- Not competent for court to include offence of robbery in conditions of
suspension in S v Mothobi — Competent for court to include offence of
housebreaking with intent to steal and theft in S v Motlhale — Conditions of
suspension further qualified in S v Motlhale to where accused sentenced to direct
imprisonment without the option of a fine — Conditions of suspension accordingly
substituted.
ORDER
The sentence in S v Mothobi (CA/R 22/25) is substituted as follows:
1. The accused is hereby sentenced to Twelve (12) months imprisonment,
which is wholly suspended for a period of Four (4) years on condition that
the accused is not convicted for the offence of Theft committed during the
period of suspension and for which the accused is sentenced to direct
imprisonment without the option of a fine.
2. In terms of section 103 of the Firearms Control Act 60 of 2000, the accused
has previously been declared unfit to possess a firearm.
The sentence in S v Motlhale (CA/R 23/25) is substituted as follows:
1. The accused is hereby sentenced to Twelve (12) months imprisonment,
which is wholly suspended for a period of Four (4) years on condition that
the accused is not convicted for the offence of Housebreaking with intent to
steal and theft; or Theft committed during the period of suspension and for
which he is sentenced to direct imprisonment without the option of a fine.
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2. In terms of section 103 of the Firearms Control Act 60 of 2000, the accused
is declared unfit to possess a firearm.
REVIEW JUDGMENT
Tlaletsi JP
(1] The records in the two matters were referred to this Court by the Chief
Magistrate, Kimberley, for Special Review in terms of section 304(4) of the
Criminal Procedure Act, 51 of 1977 (the Act). The learned Chief Magistrate
is of the opinion that the sentences imposed by the presiding Magistrate in
the two matters are incompetent. This is the view shared by the Acting
Senior Magistrate, who identified the two matters during her routine judicial
quality assessment of finalized cases. An opinion was obtained from the
Office of the Director of Public Prosecutions as it has an interest in the
matter. | wish to express my appreciation for the insightful opinion provided
by that office.
[2] In the matter of S v Mothobi, the accused was charged with theft of
chocolate. He was convicted on his plea of guilty and sentenced as follows:
mt: Accused is hereby sentenced to Twelve months imprisonment, which is
wholly suspended for a period of Four (4) years on condition that the
accused not be convicted for the offence of Theft or Robbery committed
during the period of suspension and for which the accused is sentence to
direct imprisonment without the option of a fine.
2. In terms of Section 103 of the Firearms Control Act 60 of 2000, the accused
Has previously been declared unfit to possess a firearm.” (sic)