S v Bobbejee (CA&R 129/04) [2006] ZANCHC 79 (3 February 2006)

S v Bobbejee (CA&R 129/04) [2006] ZANCHC 79 (3 February 2006)

The regional magistrate convicted the appellant of two counts of rape and two counts of robbery with aggravating circumstances. The rape convictions fall squarely within Part I of Schedule 2 of the Criminal Law Amendment Act, 105 of 1997. In terms of section 52(1) of the Act, the regional magistrate was required to stop proceedings and refer the accused to the High Court for sentencing. By imposing sentence himself, the magistrate acted ultra vires and the sentences are null and void. The High Court accordingly set aside the sentences imposed by the regional magistrate and ordered that the proceedings be referred to the High Court for sentencing. The appeal against conviction and sentence...

Citation
[2006] ZANCHC 79
Parties
Appellant: Jacobus Bobbejee; Respondent: The State
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
3 February 2006
Case Number
CA&R 129/04
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Sentences imposed by the regional magistrate are declared null and void; proceedings are referred to the High Court for sentencing; appeal against conviction and sentence is struck from the roll; appellant to remain in custody pending further orders.
Judges
Majiedt R, Molwantwa
Legal Topics
Sentencing Jurisdiction, Rape, Robbery With Aggravating Circumstances, Ultra Vires, Criminal Procedure
Criminal Law Sentencing Jurisdiction Rape Robbery With Aggravating Circumstances Ultra Vires Criminal Procedure

Case Brief

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Parties

Jacobus Bobbejee

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the regional magistrate had jurisdiction to impose sentence for two counts of rape under the Criminal Law Amendment Act, 105 of 1997.
  2. 2 Whether the sentences imposed by the regional magistrate are valid or ultra vires.
  3. 3 What is the correct procedure when a regional magistrate convicts an accused of offences listed in Part I of Schedule 2 of Act 105 of 1997.

Ratio Decidendi

The regional magistrate convicted the appellant of two counts of rape and two counts of robbery with aggravating circumstances. The rape convictions fall squarely within Part I of Schedule 2 of the Criminal Law Amendment Act, 105 of 1997. In terms of section 52(1) of the Act, the regional magistrate was required to stop proceedings and refer the accused to the High Court for sentencing. By imposing sentence himself, the magistrate acted ultra vires and the sentences are null and void. The High Court accordingly set aside the sentences imposed by the regional magistrate and ordered that the proceedings be referred to the High Court for sentencing. The appeal against conviction and sentence...

Court Disposition

Sentences imposed by the regional magistrate are declared null and void; proceedings are referred to the High Court for sentencing; appeal against conviction and sentence is struck from the roll; appellant to remain in custody pending further orders.

Orders

  • The proceedings are stopped in terms of section 52(1) of the Criminal Law Amendment Act, 105 of 1997, and the accused is referred to the Northern Cape Division of the High Court of South Africa for sentencing.
  • The appeal against the convictions and sentences is struck from the roll.