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S v Slingers (19/23) [2023] ZAWCHC 11; 2023 (1) SACR 522 (WCC) (31 January 2023)

85 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Referral for sentencing — Jurisdiction of magistrate's court — District magistrate's authority to refer matter to regional court after hearing mitigation arguments — Accused convicted of housebreaking and theft, previously convicted of similar offences — District magistrate referred matter to regional court for sentencing after mitigation hearing — Regional magistrate questioned propriety of referral, asserting potential prejudice to accused — Court held that referral was valid as it complied with section 114 of the Criminal Procedure Act, which allows for transfer after conviction but before sentencing, and that the regional court retains original sentencing jurisdiction to consider all relevant factors.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned special review proceedings in the Western Cape High Court, Cape Town, arising from criminal proceedings in the magistrates’ courts and implicating the operation of section 114 of the Criminal Procedure Act 51 of 1977 (CPA). The review was triggered by uncertainty at regional court level about whether the accused could properly be sentenced in the regional court after the district magistrate had already heard mitigation of sentence.


The parties were the State and Jerome Slingers (the accused). The accused had been convicted in the district court at Worcester on a guilty plea, and the district magistrate then committed the matter to the regional court for sentence. When the matter came before the regional magistrate, she declined to proceed to sentence and instead referred the matter to the High Court for special review, requesting guidance on whether sentencing should occur in the district court or regional court.


The general subject-matter of the dispute was a procedural and jurisdictional question: whether, after a guilty plea conviction in a magistrates’ court, the district magistrate may still commit an accused for sentencing in the regional court under section 114 of the CPA when mitigation of sentence has already been addressed in the district court, and whether that prior mitigation affects the regional court’s competence or creates unfair prejudice.


Material Facts


The undisputed facts, as relied upon by the High Court, were that on 28 April 2022 the accused appeared in the Worcester district magistrates’ court on a charge of housebreaking with intent to steal and theft, alleged to have occurred on 17 February 2021 at or near Bonnievale. The item stolen was described as a pair of All-star tekkies valued at R600.


The accused was legally represented, pleaded guilty, and a written statement in terms of section 112(2) of the CPA was handed in to support the plea. The prosecution accepted the plea, and the district court convicted the accused.


After conviction, the accused’s previous convictions were placed on record and admitted. These included four previous convictions for housebreaking with intent to steal and theft and one previous conviction for robbery. The defence then addressed the district court in mitigation of sentence and placed the accused’s personal circumstances before the court. In doing so, the defence also expressly drew attention to the similarity between the current offence and the accused’s prior housebreaking convictions, and informed the court that the accused had previously received a suspended sentence and had once been sentenced under section 276(1)(i) of the CPA. The defence also informed the court that the accused was currently serving parole of 894 days.


Only after hearing mitigation did the district magistrate indicate that she had not properly considered the accused’s prior convictions before mitigation was presented, and she then stated that the matter would have to be referred to the regional court for sentence.


When the matter came before the regional court, the regional magistrate raised concerns about the propriety of sentencing in the regional court given that mitigation had already been addressed in the district court. The parties requested that the regional magistrate either finalise the matter or refer it on special review. The regional magistrate concluded that it would not be in the interests of justice for the regional court to sentence, expressing the view that the accused would be prejudiced if the regional court proceeded. She postponed the matter and referred it to the High Court for special review, seeking a determination on the appropriate forum for sentencing.


To the extent that there was a dispute, it lay not in the factual sequence but in the procedural significance of those facts. The regional magistrate believed it was incorrect for the district magistrate to commit the matter under section 114 after mitigation had been heard, particularly where the district magistrate was (on the regional magistrate’s reading of the record) already in possession of the SAP69 when mitigation was led. The High Court treated the key question as one of statutory interpretation and jurisdiction, rather than a factual controversy.


Legal Issues


The central legal question was whether, under section 114 of the CPA, a magistrates’ court may commit an accused for sentencing by a regional court after conviction on a guilty plea but following the hearing of mitigation of sentence in the district court, and whether the regional court may then competently proceed to sentence.


Closely connected to that question were further issues about the nature and extent of the regional court’s sentencing jurisdiction under section 114 once a matter has been committed, and whether prior mitigation heard in the district court has any effect on the regional court’s competence or creates unfairness to the accused.


The dispute was primarily one of law, namely the interpretation and application of section 114 in its statutory context, and the legal consequences of the district court having received mitigation before committing the matter. The question also involved application of those legal principles to the procedural facts to determine whether the regional magistrate was correct to refuse to proceed and refer the matter for review.


Court’s Reasoning


The High Court approached the matter by identifying section 114 of the CPA as the governing provision and emphasised that interpretation must be purposive and contextual, while remaining faithful to the text and avoiding absurd results. In this regard, the court referred to the interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA).


On the court’s reading, section 114 contemplates a split procedure: conviction on a guilty plea occurs in the magistrates’ court, and sentencing may then occur in the regional court if the statutory requirements are met. Relying on S v Dzukuda and others; S v Tshililo 2000(2) SACR 443 (CC), the court treated this structure as established. The court stressed that the statutory trigger for committal is that the magistrates’ court, after conviction following on a plea of guilty but before sentence, forms the opinion that one of the section 114(1) grounds exists (including that the offence or the accused’s previous convictions justify punishment beyond the magistrate’s court’s jurisdiction, or that the accused is a dangerous criminal under section 286A(1)).


The court then addressed the precise procedural complaint raised by the regional magistrate: that mitigation had already been presented in the district court before the committal decision was taken. The High Court held that this did not undermine the committal or deprive the regional court of competence to sentence. It reasoned that once an accused is committed under section 114, the regional court has an original sentencing jurisdiction intended to place it in the same position as the trial court after conviction. In support of this characterisation, the court referred to S v Duma 2012(2) SACR 585, which it understood as indicating that the committal operates as a direction about the future conduct of the matter (namely, where sentencing is to occur), without amounting to a completed sentencing process in the lower court.


The court considered that the mitigation placed on record in the district court forms part of the material that the regional court can take into account, but it does not limit the regional court’s enquiry or jurisdiction. The High Court emphasised that sentencing requires the sentencing court to have all relevant information before it, and referred to the powers in section 274 of the CPA, which authorise a court to receive evidence to inform itself as to the appropriate sentence and permit addresses by the accused and the prosecution on sentence.


In explaining why mitigation previously addressed in the district court is not determinative, the court reasoned that the regional court, when seized with the matter, is not restricted to what was said in the district court and may ensure that all necessary material is placed before it, including by calling for further evidence where appropriate. The court cited S v Dlamini 1991(2) SACR 655 (A) for the proposition that a court may call for further evidence to enable an informed sentencing decision. It gave examples of further information a sentencing court might require, such as reports relevant to children, correctional supervision, or victim impact statements, illustrating that sentencing is an evaluative process requiring a proper evidentiary foundation.


The High Court also rejected the suggestion that the accused would necessarily be prejudiced by sentencing in the regional court merely because mitigation had been presented in the district court. It regarded the prior mitigation as evidential material that could be considered by the regional court in the normal course, alongside aggravation and any additional information. The court reiterated that the regional court would still be required to apply the conventional sentencing approach, including consideration of the “triad” referenced in S v Zinn 1969(2) SA 537 (A), and it cited S v Matyityi 2011(1) SACR 40 (SCA) in the context of traditional sentencing considerations.


Finally, the court relied on the internal structure of section 114 itself, particularly subsections 114(3)(a) and 114(3)(b), which require the regional court to consider whether the plea and material admissions were correctly recorded and whether it is satisfied of guilt; if satisfied, it must make a formal finding of guilt and sentence, and if not, it must enter a plea of not guilty (with reference to the mechanism contemplated by section 113). This, in the High Court’s view, confirmed that the regional court is obliged to consider the full record and then proceed in accordance with the statutory scheme. On this basis, the High Court concluded that the regional magistrate had been wrong to refuse to proceed with sentencing.


Outcome and Relief


The High Court directed that the regional court must proceed to finalise the matter. The practical effect was that sentencing should occur in the regional court pursuant to the section 114 committal.


The judgment, as provided, did not record any separate or additional order as to costs.


Cases Cited


Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA).


S v Dzukuda and others; S v Tshililo 2000(2) SACR 443 (CC).


S v Duma 2012(2) SACR 585.


S v Dlamini 1991(2) SACR 655 (A).


S v Zinn 1969(2) SA 537 (A).


S v Matyityi 2011(1) SACR 40 (SCA).


Legislation Cited


Criminal Procedure Act 51 of 1977, including sections 304, 112(2), 112(3), 113, 114, 274(1), 274(2), 276(1)(h), 276(1)(i), and 286A(1).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that section 114 of the Criminal Procedure Act 51 of 1977 permits a magistrates’ court, after conviction on a guilty plea and before sentence, to commit an accused for sentencing in the regional court on any of the statutory grounds, and that the fact that the district magistrate had already heard mitigation of sentence does not invalidate the committal or deprive the regional court of jurisdiction.


It further held that, once a matter is committed under section 114, the regional court has original sentencing jurisdiction and must consider the record and proceed in accordance with section 114(3). Mitigation previously placed on record in the district court constitutes material that may be considered, but it does not restrict the regional court’s sentencing discretion or process. The regional court may receive further evidence relevant to sentence and is not confined to what was presented in the district court.


On that basis, the regional magistrate’s refusal to proceed was found to be incorrect, and the regional court was directed to finalise the matter.


LEGAL PRINCIPLES


Section 114 of the Criminal Procedure Act 51 of 1977 establishes a statutory mechanism for a split procedure following a guilty plea, enabling conviction in the magistrates’ court and sentencing in the regional court, provided the committal occurs after conviction and before sentence and one of the statutory grounds for committal is present.


A purposive and contextual approach to statutory interpretation must remain faithful to statutory text and avoid absurd outcomes, consistent with the interpretive framework in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012(4) SA 593 (SCA).


Upon committal under section 114, the regional court exercises original sentencing jurisdiction and must consider the full record; it is not deprived of competence because mitigation was previously addressed in the magistrates’ court. The regional court may receive additional evidence relevant to sentence under section 274 of the CPA, and it may call for further evidence where necessary to impose an informed sentence.


Section 114(3) obliges the regional court to satisfy itself as to the correctness of the recorded plea/admissions and the accused’s guilt; if satisfied it must formally convict and sentence, and if not satisfied it must enter a plea of not guilty and proceed to trial in the regional court in accordance with the statutory direction.

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[2023] ZAWCHC 11
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S v Slingers (19/23) [2023] ZAWCHC 11; 2023 (1) SACR 522 (WCC) (31 January 2023)

IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
High Court Ref: 19/23
Magistrate
’
s
Serial No: BRC18/22
In the
matter
between:
THE STATE
And
JEROME
SLINGERS

ACCUSED
JUDGMENT
LEKHULENI
J
[1]
The regional magistrate of Worcester referred this matter to this
court for special
review in terms of section 304 of the Criminal
Procedure Act 51 of 1977 (‘the CPA’). The issue arising
in this matter
is whether a district magistrate can refer a matter in
terms of section 114 of the CPA to the regional court for sentencing
where
the district magistrate, after receiving the SAP69 of the
accused, has proceeded to listen to arguments in mitigation of
sentence.
[2]
On 28 April 2022, the accused was arraigned before the magistrate
court for the district
of Worcester on a charge of housebreaking with
intent to steal and theft.  It was alleged that the accused on
17 February
2021, and at or near Bonnievale, the accused unlawfully
and intentionally broke and opened the premises of the complainant
and
therein stole a pair of All-star tekkies valued at R600, the
property of the complainant. The accused was legally represented at

the trial, and pleaded guilty to the charge. A statement in terms of
section 112(2) of the CPA amplifying the accused’s guilty
plea
was handed in by the defence in respect of the charge levelled
against the accused.
[3]
The prosecution accepted the accused's plea, and the court convicted
the accused on
the offence charged. The accused’s previous
convictions were read into the record, and the accused admitted that
he has four
previous convictions of housebreaking with intent to
steal and theft and one previous conviction of robbery. Subsequent
thereto,
the defence proceeded to address the court
ex
parte
in mitigation
of sentence. After placing the personal circumstances of the accused
on record, the defence drew the magistrate’s
attention to the
fact that the accused had previous convictions for housebreaking with
intent to steal and theft similar to the
offence he was convicted of.
The defence also informed the court that the accused received a
suspended sentence in the past and
that he was also once sentenced in
terms of section 276(1)(i) of the CPA. The court was informed that
the accused was currently
serving parole of 894 days.
[4]
The magistrate then indicated to the defence that she did not look at
the previous
conviction properly before she was addressed in
mitigation of sentence. She then informed the State and the defence
that the matter
would have to be referred to the regional court for
sentencing. When the case appeared before the regional court, the
regional
magistrate requested the parties to address her as to why
she should proceed with the matter when the defence had already
addressed
the district magistrate on sentence. The prosecution and
the defence addressed the court and implored the regional magistrate
to
finalise the matter alternatively, to refer it for special review.
In her ruling, the regional magistrate
found
that it would not be in the interest of justice to sentence the
accused in the regional court. She opined that the accused
would be
prejudiced if she proceeded to finalised the matter. She postponed
the case to a further date and referred the matter
to this court for
special review. She petitioned this court
to
determine whether the accused should be sentenced in the regional or
district court.
[5]
The regional magistrate noted further in her referral letter to this
court that after
reading the record, she observed that the district
magistrate listened to argument in mitigation of sentence and only
then transferred
the matter to the regional court. The regional
magistrate also asserted that the district magistrate was aware of
the accused’s
SAP69 when she heard the arguments in mitigation
of sentence. Notwithstanding, the district magistrate belatedly
decided to transfer
the matter to the regional court for sentencing.
The regional magistrate opines that this was not correct. She
believes that the
district magistrate should finalise the case as she
was in possession of the accused’s SAP69 when the defense
addressed her
in mitigation of sentence. She conceded that the
accused was correctly convicted pursuant to his admissions made in
his section
112(2) statement.
[6]
In a case like this, the starting point, in my view lies in the
correct interpretation
of section 114 of the CPA, which deals with
the committal by a magistrate’s court of an accused person for
sentence by a
regional court after a conviction on a plea of guilty.
For completeness, section 114 of the CPA provides as follows:
‘
(1) If a
magistrate’s court, after conviction following on a plea of
guilty but before
sentence, is of the opinion—
(a)
that the offence in respect of which the
accused has been convicted is of such a nature or magnitude that it
merits punishment in
excess of the jurisdiction of a magistrate’s
court;
(b)
that the previous convictions of the
accused are such that the offence in respect of which the accused has
been convicted merits
punishment in excess of the jurisdiction of a
magistrate’s court; or
(c)
…
.
the court shall
stop the proceedings and commit the accused for sentence by a
regional court having jurisdiction
.
(2) Where an
accused is committed under subsection (1) for sentence by a regional
court, the record of the proceedings in the magistrate’s
court
shall upon proof thereof in the regional court be received by the
regional court and form part of the record of that court
and the plea
of guilty and any admission by the accused shall stand unless the
accused satisfies the court that such plea or such
admission was
incorrectly recorded.
(3) (a) Unless
the regional court concerned—
(i)
is satisfied that a plea of guilty or an
admission by the accused which is material to his guilt was
incorrectly recorded; or
(ii)
is not satisfied that the accused is
guilty of the offence of which he has been convicted and in respect
of which he has been committed
for sentence, the court shall make a
formal finding of guilty and sentence the accused.
(b) If the court
is satisfied that a plea of guilty or any admission by the accused
which is material to his guilt was incorrectly
recorded, or if the
court is not satisfied that the accused is guilty of the offence of
which he has been convicted and in respect
of which he has been
committed for sentence or that he has no valid defence to the charge,
the court shall enter a plea of not
guilty and proceed with the trial
as a summary trial in that court: Provided that any admission by the
accused the recording of
which is not disputed by the accused, shall
stand as proof of the fact thus admitted.
(4) The
provisions of section 112(3) shall apply with reference to the
proceedings under this section.’
[7]
It is now trite that courts are enjoined to adopt a purposive and
contextual approach
to interpretation. See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012(4) SA 593 (SCA) at 18. A contextual or purposive reading of a
statute must remain faithful to the actual wording of the statute.
It
is also a fundamental principle of our law that an interpretation
that leads to absurd results must be avoided.
[8]
Section 114 of the CPA envisages a split procedure in which an
accused person is convicted
on a plea of guilty in the magistrate’s
court and thereafter committed for sentence in the regional court.
See
S v Dzukuda and others; S v Tshililo
2000(2) SACR 443 (CC) at para 15. From the reading of section 114, it
is evident that a magistrate’s court can only commit
an accused
person to the regional court for sentencing after a conviction on a
plea of guilty but before sentence. This jurisdictional
requirement
must be met before an accused person can be committed to the regional
court in terms of section 114.
[9]
In addition, section 114 sets out three grounds on which a magistrate
court may refer
a matter to the regional court for sentence; namely,
if the court is of the opinion that the offence in respect of which
the accused
has been convicted merits a punishment exceeding the
jurisdiction of the magistrate’s court; if the accused’s
previous
convictions are such that the offence in respect of which
the accused has been convicted merits punishment exceeding the
jurisdiction
of the magistrate’s court, and if the accused is a
dangerous criminal as envisaged in section 286A(1). These grounds are
independent of each other and need not all be present and need not
all be viewed cumulatively. Once one of these grounds is satisfied,

the magistrate must stop the proceedings and commit the accused for
sentence by a regional court having jurisdiction.
[10]
Accordingly, the referral must be done after conviction on a guilty
plea but before sentence.
This condition precedent must be satisfied
before a matter is transferred to the regional court. In
casu
,
the magistrate stopped the proceedings in her court and correctly
committed the accused to the regional court, after she convicted
him.
The regional magistrate takes issue with the fact that the district
magistrate was addressed in mitigation of sentence by
the defence
before she could decide to refer the matter to the regional court.
She also argues that the magistrate was aware or
should have been
aware of the accused's previous convictions before she was addressed
in mitigation of sentence. As a result, she
contends that the accused
will be prejudiced if she finalises the matter.
[11]
In my opinion, the contention of the regional magistrate is
erroneous, mistaken and misses the
point. Once an accused person is
committed to the regional court in terms of section 114 of the CPA,
the regional court retains
an original sentencing jurisdiction,
designed to place it in the same position as the trial court after it
has convicted the
accused. In this case, the accused was only
convicted, but not yet sentenced. The magistrate only gave a
direction for the future
conduct of the matter, namely, to refer the
matter to the regional court for the accused to be sentenced by that
court. See
S v Duma
2012(2)
SACR 585, para 10. In my view, the regional court must consider the
mitigating factors placed on record before the district
court when a
sentence is imposed. After considering the mitigating and aggravating
factors, and any other relevant evidence, the
regional magistrate
would be at large to impose any competent sentence he / she deems
fit.
[12]
The jurisdictional competence of the regional court to hear a matter
transferred from the magistrate’s
court is not ousted by the
mitigating or aggravating factors placed before a district
magistrate. In any event, before a regional
court imposes a sentence,
all evidential material relevant to sentencing must be placed before
it. In so doing, the court is exercising
its sentencing jurisdiction
in the ordinary course. Notably, 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.’ Meanwhile,
section 274(2) provides that ‘the
accused may address the court on any evidence received under
subsection (1), as well as
on the matter of the sentence, and
thereafter the prosecution may likewise address the court.’ In
my view, where a magistrate
has heard arguments in mitigation and
thereafter refer the matter to the regional court for sentence, the
regional court will not
be restricted to the mitigating factors
adduced in the magistrate’s court. The regional court will also
not be limited to
the material placed before it by the parties in
terms of section 274 of the CPA. It may call for further evidence to
ensure that
all the necessary evidence for the purposes of sentence,
is placed before it. See
S v Dlamini
1991(2) SACR 655 (A) at 667.
[13]
For instance, if a minor child is involved, it may call for a
probation officer’s report.
If the court considers the
possibility of imposing a correctional supervision sentence in terms
of section 276(1)(h) of the CPA,
the court may call for a
correctional officer's report etc. The court may also call for a
victim impact statement to make an informed
decision on the matter.
The fact that the trial court has heard arguments in mitigation
before transferring the case to the regional
court is immaterial and
inconsequential. In the converse, those mitigating factors on record
are evidential material that the sentencing
court would consider when
considering the appropriate sentence to mete out. The regional court
would still be enjoined to regard
all the traditional factors,
particularly the triad, in imposing sentence. See
S
v Zinn
1969(2) SA 537 (A);
S
v Matyityi
2011(1) SACR 40 (SCA).
[14]
Importantly, subsection 3(a) and (b) of this section enjoin the
regional court to satisfy itself
that the plea was correctly recorded
or that the accused is guilty of the offence of which he has been
convicted. In that event,
the court must make a formal finding of
guilt and sentence the accused. If the court is of the opinion that
the plea of guilty
was incorrectly recorded, the court must enter a
plea of not guilty in terms of section 113 of the CPA and proceed
with the trial.
Thus, it is abundantly clear that the regional court
must consider the record placed before it in its entirety, before it
can sentence
the accused. Therefore, the magistrate was wrong in
refusing to proceed with the matter in the regional court.
ORDER
[15]
In light of the forenamed reasons, the following order is granted:
[15.1]  The regional
court must proceed to finalise the matter.
LEKHULENI J
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered:
HENNEY J
JUDGE OF THE HIGH
COURT

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