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document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case no: CA & R 29/25
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
THE STATE
and
ALDRICH VAN ZYL ACCUSED
Coram: Phatshoane DJP et Mamosebo J
Heard: In chambers.
Delivered: 22/08/2025.
Summary: Special Review: Section 304(4) of the Criminal Procedure
Act, 51 of 1977 (CPA) – Accused pleaded guilty to assault common in terms
of s 112(1)(a) of the CPA – Accused subsequently charged with a
contravention of a protection order and assault common emanating from the
same conduct – Pleaded guilty in terms of s 112(2) of the CPA – Convicted
and sentenced – Not duplication of convictions but double jeopardy – Globular
sentence imposed – It was in the interests of justice to set aside the second
conviction on assault and antedate the sentence.
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ORDER
1. The conviction and sentence in Case Number L43/2022 in respect of
assault common is set aside.
2. The accused is sentenced to a period of six months imprisonment in
terms of s 276(1)( i) of the Criminal Procedure Act, 51 of 1977 for the
conviction of contravening a protection order.
3. The sentence in (2) above is antedated to 14 September 2022. This
sentence has, itself, superannuated.
JUDGMENT ON SPECIAL REVIEW
MAMOSEBO J (PHATSHOANE DJP CONCURRING)
[1] On 29 April 2025 Mr JC Byleveld, a Magistr ate in Calvinia, submitted
this matter for review in terms of s 304(4) of the Criminal Procedure
Act 51 of 1977 (CPA ), with the request that the conviction and
sentence on the second count of assault common be set aside as it
constitutes a duplication of the exact same charge that the accused
was already convicted of and sentenced for under a different Case
Number, L40/2022.
[2] The background is necessary. The State had issued summons in a
criminal case (J175) which was served by a member of the South
African Police Service (SAPS) on 14 June 2022 on the accused
notifying him to appear at a Periodical Court in Loeriesfontein,
Calvinia, on 22 June 2022 on a charge of assault common said to
have been committed on 02 April 2022. The State alleged that he
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assaulted L[...] v[...] Z[...] , his sister, by throwing a cup against her
head, which caused an incised wound.
[3] The accused’s first appearance in Court was on 22 June 2022 under
Case Number L40/2022. It appears that an Admission of Guilt (AOG)
fine was fixed at R300.00 , and the case was postponed to 13 July
2022 to afford him an opportunity to pay the fine. On 13 July 2022, the
AOG fine was still unpaid, and the matter was postponed to 02
August 2022.
[4] On 02 August 2022 , the composition of the Court was the following:
The magistrate was Mr Byleveld, the prosecutor Ms Jannetjies and for
the defence, Mr Makaza . The accused pleaded guilty in terms of
s 112(1)(a) of the CPA. He was sentenced to a fine of R500 or one
month imprisonment , which was suspended for a period of three
years on specified conditions.
[5] On 14 September 2022 , the accused appeared in the same
courtroom in respect of a different Case Number , L43/2022. The
composition of the court was the same as on 02 August 2022. In this
instance, he was charged with the contravention of a protection order
in terms of s 17(1)( a) read with sections 1, 5, 6, 7 and 17 of the
Domestic Violence Act, 116 of 1998; and assault common which
stems from the same incident for which he was already convicted
under Case Number L40/2022. He pleaded guilty to both those counts
in terms of s 112(2) of the CPA and was convicted. The Magistrate
took both counts together for purposes of sentence and imposed six
months imprisonment in terms of s 276(1)( i) of the CPA read with s
84F(1) (sic) of the Correctional Services Act, 111 of 1998. He was
further sentenced to an additional six months imprisonment,
conditionally suspended for a period of five years.
[6] According to the Magistrate, it was only when the State applied to the
Court seeking that the suspended sentences imposed on 02 August
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2022 and on 14 September 2022 be put into operation that he
realised the erroneous duplication in cases L40/2022 and L43/2022 in
respect of the assault common charge. Hence the request for the
review.
[7] Section 304(4) of the CPA provides:
‘If in any criminal case in which a magistrate’s court has imposed a
sentence which is not subject to review in the ordinary course in terms
of section 302 or in which a regional court has imposed any sentence,
it is brought to the notice of the provincial or local division having
jurisdiction or any judge thereof that the proceedings in which the
sentence was imposed were not in accordance with justice, such
court or judge shall have the same powers in respect of such
proceedings as if the record thereof had been laid before such court
or judge in terms of section 303 or this section.’
[8] It is unfortunate that the prosecutor , in drawing up the charge sheet,
and the accused’s attorney , during consultation , did not pick up the
duplication. There was a plea available to the accused –of autrefois
convict, which means that he has already been convicted of the
offence with which he is charged and proceeding with the same
charge would amount to double jeopardy.
[9] Adv JJD Rosenberg of the Office of the Director of Public
Prosecutions has provided us with a most helpful opinion in this
regard, for which we thank him. Navsa JA et Van Heerden JA in S v
Whitehead and Others1 wrote:
‘Du Toit et al Commentary on the Criminal Procedure Act (service 38,
2007) at 14- 5 summarises the effect of s 83 in the following manner:
1 2008 (1) SACR 431 (SCA) para 33.
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Section 83 authorises the inclusion in the charge -sheet of all the
charges that could possibly be supported by the facts, even if they
overlap to such an extent that convictions on all or on some of the
counts would amount to a duplication of convictions. An accused may
thus not object, at the beginning of the trial, to the charge -sheet or
indictment on the basis that it contains a duplication of charges. Such
a duplication will occur where more than one charge is supported by
the same culpable fact. In short, it is the court's duty to guard against
a duplication of convictions and not the prosecutor's duty to refrain
from the duplication of charges.’
The Whitehead case is therefore on point.
[10] The Constitutional Court in S v Basson2 pronounced:
‘2(b) Double jeopardy
Section 35(3)(m) of the Constitution guarantees that:
“Every accused person has a right to a fair trial, which includes
the right -
. . .
(m) not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or
convicted.”
The plea of double jeopardy, whether in the form of a previous
conviction or acquittal, is
“based in English law on the maxim nemo debet bis vexari si
constat curiae quod sit pro una et eadem causa and this maxim
is derived from the Roman law of the exceptio rei judicatae . A
2 2004 (1) SACR 285 (CC) paras 61 and 62.
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plea of autrefois acquit is in fact equivalent to a plea of the
exception rei judicatae in our law.”
The plea of double jeopardy also forms part of the English common
law and was recorded by Blackstone as a “universal maxim of the
common law of England, that no man is to be brought into jeopardy of
his life, more than once, for the same offence ”. The constitutional
protection against double jeopardy is part of the right to a fair trial.
Both the individual and the State have interests in the prevention of
double jeopardy. The individual must be protected against abuse by
the State and be given the benefit of a final decision in any criminal
prosecution. The process of prosecution is disruptive and there must
be the prospect of and timely receipt of finality in a prosecution.
Moreover, an accused has a right to rely on an acquittal, when he or
she has been at risk of conviction, and the accompanying right not to
face further prosecutions.
Sections 106(1)(c) and (d) of the Criminal Procedure Act provide for
the pleas of autrefois convict or autrefois acquit. These pleas provide
the legal remedy which enables an accused to rely on his or her s
35(3)(m) right and they must accordingly be interpreted in the light of
that right. The pleas are based on the common -law principles referred
to above.’
[11] Regard being had to the above principles and authorities, the accused
ought not to have been prosecuted, much less convicted and
sentenced for assault common under Case Number L43/2022 . It
follows that the conviction on the assault common under Case
Number L43/2022 was not competent and therefore not in
accordance with justice and stands to be set aside.
[12] The trial court imposed a globular sentence under Case Number
L43/2022. The Magistrate’s view is that even if the conviction on the
assault charge is set aside , the globular sentence imposed would still
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fit the crime. The Supreme Court of Appeal in S v Rantlai 3 confirmed
the undesirability of the practice of globular sentences, cautioning:
‘It is widely accepted that there is no law which prohibits or provides
for the imposition of a globular sentence. See S v Young 1977 (1) SA
602 (A) at 610E. The imposition of a globular sentence depends upon
the discretion of the sentencing officer, based on the peculiar facts of
the case. However, our courts have on various occasions expressed
some misgivings about such sentences, particularly where an
accused was convicted after having pleaded not guilty, but
subsequently having the conviction on some counts set aside on
appeal. See Director of Public Prosecutions, Transvaal v Phillips 2013
(1) SACR 107 (SCA) [2011] ZASCA 192) para 27 where Petse AJA
stated:
“The practice of imposing globular sentences for multiple counts
is generally an undesirable one.”
See also S v Kruger 2012 (1) SACR 369 (SCA) ([2011] ZASCA 219)
para 10.
As it is clear from Young, Kruger and Phillips that there is no absolute
bar against imposing globular sentences, there seems to be some
unanimity in our courts that, depending on the facts of each case, it
can be effectively used in exceptional circumstances. See S v Nkosi
1965 (2) SA 414 (C) at 416C. This is because there will be
circumstances where, for instance, it can be used to ameliorate the
effect of sentences which individually may appear to be shockingly
inappropriate. Furthermore, such a sentence may be appropriate
where an accused pleaded guilty on multiple offences which are
closely connected in terms of time and common facts and in respect
whereof the individual sentences may, cumulatively, amount to a
3 2018 (1) SACR 1 (SCA) paras 9 and 10.
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sentence that induces a sense of shock. There may of course be
other cases where such a sentence might be appropriate.’
[13] Under the circumstances , the review court is at large to consider the
sentence afresh for purposes of the remaining conviction of a
contravention of a protection order. 4 The personal circumstances, the
nature of the offence and the interests of the community remain the
same. Of significance is the fact that the accused was sentenced on
14 September 2022 to an effective term of six months imprisonment
in terms of the provisions of s 276(1)( i) of the CPA and an additional
six months imprisonment , which was suspended for a period of five
years.
[14] The sentence of six months imprisonment has been rendered
redundant due to the effluxion of time. The latest information was
sourced from the Department of Correctional Services. A copy of the
form G373 of the Department under the head: Warrant for Placement
under Correctional Supervision on Parole/ Release upon Expiration of
Sentence was placed before us. It is recorded on the form that the
accused was released on 13 March 2023 upon the expiration of the
sentence. It is accordingly in the interests of justice to substitute the
existing sentence of six months imprisonment suspended for five
years with the following:
1. The conviction and sentence in Case Number L43/2022 in
respect of assault common is set aside.
2. The accused is sentenced to a period of six months
imprisonment in terms of s 276(1)(i) of the Criminal Procedure
Act, 51 of 1977 for the conviction of contravening a protection
order.
4 See for example S v Nkomo [2024] ZANWHC 69 ; 2024 (2) SACR 109 (NWM) and S v
Mainga [2019] ZAGPJHC 523; 2020 (1) SACR 666 (GJ).
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3. The sentence in (2) above is antedated to 14 September
2022. This sentence has, itself, superannuated.
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION, KIMBERLEY