S v Dungan (39/2017, B222/686/2016, A99/2017) [2017] ZAGPPHC 174 (2 March 2017)
- Citation
- [2017] ZAGPPHC 174
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- N Janse van Nieuwenhuizen, H J de Vos
- Case number
- A99/2017
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- N Janse van Nieuwenhuizen, H J de Vos
- Case number
- A99/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The magistrate's court imposed a sentence that exceeded the statutory maximum fine prescribed by section 2 of the Trespass Act 6 of 1959, which allows for a fine not exceeding R2,000 or imprisonment not exceeding two years, or both. The sentence of R4,000 was therefore unlawful. The High Court, upon review, found that the proceedings were not in accordance with justice and set aside the sentence, substituting it with a lawful sentence in line with the statutory provisions.
Court disposition
The sentence imposed by the magistrate's court is set aside and substituted with a lawful sentence in accordance with the Trespass Act.
Orders
- The sentence of a fine of R4,000 or eight months imprisonment, of which R2,000 or four months imprisonment is suspended for five years, is set aside.
- The accused is sentenced to a fine of R2,000 or eight months imprisonment, of which R1,000 or four months imprisonment is suspended for five years on condition that the accused is not convicted of contravening section 1 or 2 of Act 6 of 1959 read with section 250(1)(d) of Act 51 of 1977 during the period of suspension.
02
Material facts
Parties
The State
RespondentJabulo Vuyo Dungan
ApplicantAmounts and remedies
- Original Fine Imposed: ZAR 4,000
- Original Suspended Fine: ZAR 2,000
- Substituted Fine Imposed: ZAR 2,000
- Substituted Suspended Fine: ZAR 1,000
03
Procedural history
Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the magistrate's court was in accordance with the penalty provisions of the Trespass Act 6 of 1959.
- 02
Whether the proceedings in the court a quo were in accordance with justice.
Party arguments
- Applicant
- The accused was convicted of contravening section 1(1)(a) of the Trespass Act 6 of 1959 and sentenced to a fine of R4,000 or eight months imprisonment, with part of the sentence suspended. The applicant did not make formal submissions but the matter was referred for special review due to the sentence exceeding the statutory maximum.
- Respondent
- The State did not make formal submissions but referred the matter for special review, acknowledging that the sentence imposed exceeded the statutory limits prescribed by section 2 of the Trespass Act.
05
Court’s reasoning
Legal principles
- 01
Section 2 of the Trespass Act 6 of 1959
A sentence must comply with the penalty provisions set out in the relevant statute; exceeding the statutory maximum renders the sentence unlawful.
- 02
Section 304(4) of the Criminal Procedure Act 51 of 1977
Special review may be invoked where proceedings are not in accordance with justice, and the High Court may set aside and substitute the sentence.
06
Ratio, limits and disposition
Ratio decidendi
The magistrate's court imposed a sentence that exceeded the statutory maximum fine prescribed by section 2 of the Trespass Act 6 of 1959, which allows for a fine not exceeding R2,000 or imprisonment not exceeding two years, or both. The sentence of R4,000 was therefore unlawful. The High Court, upon review, found that the proceedings were not in accordance with justice and set aside the sentence, substituting it with a lawful sentence in line with the statutory provisions.
Obiter and limits
- Magistrates must ensure that sentences imposed do not exceed the statutory limits provided by the relevant legislation.
- Special review serves as a safeguard to correct sentences that are not in accordance with justice.
Court disposition
The sentence imposed by the magistrate's court is set aside and substituted with a lawful sentence in accordance with the Trespass Act.
- The sentence of a fine of R4,000 or eight months imprisonment, of which R2,000 or four months imprisonment is suspended for five years, is set aside.
- The accused is sentenced to a fine of R2,000 or eight months imprisonment, of which R1,000 or four months imprisonment is suspended for five years on condition that the accused is not convicted of contravening section 1 or 2 of Act 6 of 1959 read with section 250(1)(d) of Act 51 of 1977 during the period of suspension.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
A99/2017
2/3/2017
HIGH COURT REVIEW NO: 39/2017
CASE SERIAL NO: 8222/686/2016
REVIEW REFERENCE NO. 1/4/13 JM -Rama
DATE:
22 February 2017
In the matter between
THE
STATE
and
JABULO,
VUYO DUNGAN
REVIEW
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
1. The accused was convicted in the Hatfield Magistrates Court of contravening section l(l)(a) read with sections l(1A), 1(2) and 2 of the Trespass Act 6 of 1959 ("'the Act") and sentenced to a fine of R 4 000,00 or eight months imprisonment of which R 2 000.00 or four months imprisonment was suspended for a period of five years on
condition that the accused is not convicted of contravening section 1 or 2 of Act 6 of 1959 read with section 250(1 )(d) of Act 51 of 1977 during the period of suspension.
2. The sentence imposed on the accused does not accord with the penalty provisions contained in section 2 of the Act. Section 2 provides for a fine not exceeding R 2000. 00 or a period of imprisonment not exceeding two years or both such fine and imprisonment.
3. In view of the aforesaid, the court a quo referred the matter to this court for a special review in terms of the provisions of section 304(4) of the Criminal Procedure Act. 51 of 1977.
4. Having had regard to the facts supra I am satisfied that the proceedings in the court a quo was not in accordance with justice and stands to be set aside.
5. In the premises. the following order is granted:
Order
The sentence of a fine of R 4 000. 00 or eight months imprisonment of which R 2 000. 00 or four months imprisonment is suspended for a period of five years on condition that the accused is not convicted of contravening section 1 or 2 of Act 6 of 1959 read with section 250(1)(d) of Act 51 of 1977 during the period of suspension 1s set aside and substituted with the following sentence:
"The accused is sentenced to a fine of R 2 000,00 or eight (8) months imprisonment of which R 1 000,00 or four months imprisonment is suspended for a period of five years on condition that the accused is not convicted of contravening section 1 or 2 of Act 6 of 1959 read with section 250(l)(d) of Act 51 of 1977 during the period of suspension."
________
N Janse van Nieuwenhuizen
Judge of the High Court of South Africa
Gauteng Division, Pretoria
I agree and it is so ordered
H J de Vos
Judge of the, High Court of South Africa
Gauteng Division, Pretoria
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