S v Hlatswayo (A104/12) [2017] ZAGPPHC 912 (9 March 2017)
- Citation
- [2017] ZAGPPHC 912
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- S Potterill
- Case number
- A104/12
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- S Potterill
- Case number
- A104/12
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The sentence of three years imprisonment imposed for contravention of section 1(1)(a) of the Trespass Act 6 of 1959 exceeded the statutory maximum of two years as provided by section 2 of the Act. This constituted a material irregularity and was admitted as an oversight by the trial magistrate. The review court set aside the sentence and remitted the matter for resentencing. The conviction under section 1(1)(a) was found to be valid, as the statutory provision exists and was correctly cited in the charge sheet.
Court disposition
Sentence set aside and matter remitted for resentencing.
Orders
- The sentence of three years imprisonment is reviewed and set aside.
- The matter is remitted to the trial magistrate to impose sentence afresh in the presence of the accused.
02
Material facts
Parties
The State
RespondentBafana Joseph Hlatswayo
AppellantAmounts and remedies
- Original Sentence (years Imprisonment): 3
- Statutory Maximum Sentence (years Imprisonment): 2
03
Procedural history
Posture
Review Application / Review of Sentence
04
Questions and positions
Legal issues
- 01
Whether the sentence of three years imprisonment imposed for contravention of section 1(1)(a) of the Trespass Act 6 of 1959 exceeded the statutory maximum.
- 02
Whether the conviction under section 1(1)(a) of the Trespass Act was valid.
Party arguments
- Applicant
- The sentence imposed by the trial magistrate exceeded the statutory maximum of two years imprisonment as provided in section 2 of the Trespass Act. The conviction was also questioned on the basis that section 1(1)(a) allegedly does not exist.
- Respondent
- The trial magistrate admitted the oversight regarding the sentence and agreed it should be set aside. Upon review, it was confirmed that section 1(1)(a) does exist, and the conviction was valid.
05
Court’s reasoning
Legal principles
- 01
Section 2 of the Trespass Act 6 of 1959
A sentence imposed in excess of the statutory maximum prescribed by legislation is unlawful and must be set aside.
- 02
Section 304(4) of the Criminal Procedure Act
Review proceedings may be initiated where there is a material irregularity in the sentence imposed by a lower court.
- 03
Trespass Act 6 of 1959
The charge sheet and conviction are valid where the statutory provision exists and is correctly cited.
06
Ratio, limits and disposition
Ratio decidendi
The sentence of three years imprisonment imposed for contravention of section 1(1)(a) of the Trespass Act 6 of 1959 exceeded the statutory maximum of two years as provided by section 2 of the Act. This constituted a material irregularity and was admitted as an oversight by the trial magistrate. The review court set aside the sentence and remitted the matter for resentencing. The conviction under section 1(1)(a) was found to be valid, as the statutory provision exists and was correctly cited in the charge sheet.
Obiter and limits
- A careful reading of the Trespass Act confirms the existence of section 1(1)(a), and there was no defect in the charge sheet or conviction.
Court disposition
Sentence set aside and matter remitted for resentencing.
- The sentence of three years imprisonment is reviewed and set aside.
- The matter is remitted to the trial magistrate to impose sentence afresh in the presence of the accused.
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
OFFICE OF THE CHIEF
JUSTICE
(REPUBLIC OF SOUTH AFRICA)
High Court Ref. No. H3/17
Magistrates serial no. H3/20127
Case no.
A222/873/16
THE STATE
VERSUS
BAFANA
JOSEPH HLATSWAYO
REVIEW JUDGEMENT
1. The accused was convicted of contravention 1Df section 1(1)(a) of the Trespass Act 6 of 1959 and sentenced to 3 three years imprisonment.
2. The matter was subsequently, in terms of the 11 provisions of section 304(4) of the Criminal Procedure Act, forwarded by the Chief
Magistrate of Pretoria to be reviewed.
3. The ground for review is that the imposed 3 years imprisonment exceeds the prescribed limit of (2) two years provided for in Section 2 of the Trespass Act.
4. This was clearly an oversight, admitted by the trial Magistrate, and the sentence should be set aside.
5. The Chief Magistrate also remarked that the accused was (incorrectly) convicted of contravention of section 1(1)(a) in that there is "no subsection 1 in section 1". A careful reading of the Act reveals that there is indeed a section 1(1)(a). Accordingly there was nothing wrong with the charge sheet and the conviction.
ORDER:
(a) The sentence of (3) three years imprisonment is reviewed and set aside.
(b) The matter is remitted to the trial Magistrate to impose sentence afresh in the presence of the accused.
____ _______
AJBAM
S
POTTERILL
JUDGE
OF THE HIGH COURT
JUDGE OF THE HIGH COURT
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