S v Herbert (420/04) [2004] ZANCHC 28 (3 September 2004)

S v Herbert (420/04) [2004] ZANCHC 28 (3 September 2004)

The compensatory order granted by the magistrate was ultra vires and incompetent, as section 300 of the Criminal Procedure Act only allows compensation for damage to property, not for injury to dignity or reputation. There was no evidentiary basis for a compensatory order, and the accused was not properly sentenced for the offence. The magistrate failed to follow the correct procedure, including giving the parties an opportunity to address the court. Accordingly, the conviction on charge 2 is confirmed, but the sentence and compensatory order are set aside. The matter is remitted to the district court for proper sentencing.

Citation
[2004] ZANCHC 28
Parties
Applicant: The State; Respondent: Sadia Sheryl Herbert
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
3 September 2004
Case Number
420/04
Procedural Posture
Special Review / Review of District Court Conviction and Sentence
Outcome
Conviction on charge 2 confirmed; sentence and compensatory order set aside; matter remitted for proper sentencing.
Judges
HJ Lacock, SA Majiedt
Legal Topics
Crimen Injuria, Compensatory Order, Sentencing Procedure, Ultra Vires, Section 300 Criminal Procedure Act
Criminal Law Crimen Injuria Compensatory Order Sentencing Procedure Ultra Vires Section 300 Criminal Procedure Act

Case Brief

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Parties

The State

Applicant

Sadia Sheryl Herbert

Respondent

Procedural Posture

Special Review / Review of District Court Conviction and Sentence

Legal Issues

  1. 1 Whether the compensatory order granted by the district magistrate was lawful and competent under section 300 of the Criminal Procedure Act.
  2. 2 Whether the accused was properly sentenced for the offence of crimen injuria.
  3. 3 Whether the magistrate acted ultra vires in granting a compensatory order without proper evidentiary basis or procedure.

Ratio Decidendi

The compensatory order granted by the magistrate was ultra vires and incompetent, as section 300 of the Criminal Procedure Act only allows compensation for damage to property, not for injury to dignity or reputation. There was no evidentiary basis for a compensatory order, and the accused was not properly sentenced for the offence. The magistrate failed to follow the correct procedure, including giving the parties an opportunity to address the court. Accordingly, the conviction on charge 2 is confirmed, but the sentence and compensatory order are set aside. The matter is remitted to the district court for proper sentencing.

Court Disposition

Conviction on charge 2 confirmed; sentence and compensatory order set aside; matter remitted for proper sentencing.

Orders

  • The conviction on charge 2 is confirmed.
  • The sentence and compensatory order imposed on the accused on charge 2 are set aside.