S v Kuzana (A442/20; 05/20) [2020] ZANCHC 49 (8 July 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

COURT AQUO CASE NUMBER: A442/20

REVIEW CASE NUMBE R: 05/20

In the matter between:

THE

STATE

and

KUZANA.

MZUKUZI

JUDGMENT

Per Nxumalo , AJ

Introduction

1. This is a special review in terms of section 304 (4) of the Criminal Procedure Act 51 of 1977 (the CPA) vide the Chief Magistrate: Kimberley Mr OM Krieling, the Judicial Head: Administrative Region 10, Northern Cape Province. Section 304 (4) of the CPA, expressly stipulates that if in any criminal case in which a magistrates' court has imposed a sentence which is not subject to review in the ordinary course in terms of section 302 or in which a regional court has imposed any sentence, it is brought to the notice of the provincial or local division having jurisdiction or any judge thereof that the proceedings in which the sentence was imposed were not in accordance with justice, such court or judge shall have the same powers in respect of such proceedings as if the record thereof has been laid before such court or judge in terms of sections 303 or 304 (4) of the CPA.

Brief statement of the salient facts

2. This review became imperative after the impugned record was discovered during a routine internal monitoring process of all finalised case records. The following two discrepancies were apparently discovered , which allegedly rendered the impugned proceedings "not in accordance with justice" as con templated in section 304 (4) of the CPA; to wit: (a) the prosecutor and accused's legal representative were allegedly not afforded any opportunity to address the court in respect of sentencing; and (b) the presiding magistrate allegedly failed to determine the nature and extent of the sentence of correctional supervision .

3. No where in the record does it evince how an d when the presiding magistrate sought to comply with section 274 (2) of the CPA. This court therefore finds that there was no such compliance. This notwithstanding, on 01 June 2020, the presiding magistrate imposed the following sentence, by simply stating that:

"[So] both counts, [both the housebreak count as well as the robbery count is] taken into consideration for sentencing and you are sentenced to 24 (twenty-four) months in terms of section 276 (1) (h) of the CPA, as per attached report, [which means you are subjected to 24 months house arrest...]"[1]

4. It is contended that, regard being had to the foregoing, the presiding magistrate failed to determine the nature and extent of the sentence of correctional supervision. It is also contended that it is so since the presiding magistrate only indicated that she imposes correctional supervision as per the attached report (presumably the suitable report for the consideration of correctional supervision as a sentence, testified on by the correctional officer, one Ms Kephe on 01 June 2020.

5. This court is now entreated to set aside the sentence imposed by the presiding magistrate on 01 June 2020 and to refer same back to the said magistrate for reconsideration of sentence after affording the relevant legal representatives an opportunity to address him/ her on the appropriate sentence. This court is also entreated to opine with regard to the correctness or otherwise of wording used by the presiding magistrate in sentencing the accused; to wit: "Both counts taken into consideration for sentencing ..." it is contended that the impugned phrase might be ambiguous. The suggested wording is: "Both counts taken together for the purposes of sentence."

Brief statement of the applicable law

6. Section 274 (2) of the CPA expressly stipulates as follows; that:

"(2) Th e 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."

7. The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. Section 35 (3 (b) and (i) of the Constitution, respectively and peremptorily stipulate that everyone has a right to a fair trial, which includes the right to have adequate time and facilities to prepare a defence and to adduce and challenge evidence. These are fundamental human rights entrenched in the Bill of Rights. They may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including those expressly mentioned in section 35 (1) of the Constitution. The Supreme Court of Appeal in S v Makela 2012 (1) SACR 431 (SCA) at para 14, per Bosielo AJ, accordingly emphasised that it is generally accepted that both the accused and the state have a right to address the court regarding the appropriate sentence. It is therefore irregular for a sentencing officer to continue to sentence an accused person without having offered the accused an opportunity to address the court.

8. In S v Ndaba 1993 (1) SACR 637 (A), it was correctly held that the court ought not to leave the determination of components of the sentence of correctional supervision to the correctional officer. That court maintained that it was for the judicial officer, as guided by expert evidence, to determine the framework of a programme within which correctional supervision will take place. Also, the court pointed out that it was in general also in correct to leave a determination of a significant component of such a programme for the determination of a correctional official. Finally, that court found that it is therefore necessary for the sentencing officer to determine as far as possible the lot of the offender before him. There is also no evidence on record evincing how, if at all, the presiding magistrate sought to determine the nature and extent of the correctional supervision sentence meted out to the accused. I accordingly find that the presiding magistrate has not sought to do so.

9. The term "ambiguity" means "... a phrase fairly and equally open to diverse meanings"- see Ormond Investment v Betts 1928 AC (Hof L) 143 AT 156. The question on this issue is therefore whether the impugned phrase is fairly and equally open to diverse meaning as opposed to the preferred one. A proper reading of Concise Oxford English Dictionary (Revised 10th Edition) reveals that the phrase "both counts taken into consideration" simply means: "considering two things or both sets of evidence." The phrase "both counts taken together", for its own part simply means: "both counts taken into consideration." These phrases seem synonymous. In the premise, this court is of the considered opinion that the impugned phrase cannot be fairly and equally open to diverse meaning.

Order

10. In the premise, the following order is made:

(a) The sentence imposed by the Presiding Magistrate on 01 June 2020 is hereby reviewed and set aside.; and

(b) The matter is remitted back to Presiding Magistrate for reconsideration of sentence after affording the litigants an opportunity to address the court on the appropriate sentence.

APS

NXUMALO

Acting Judge of the High Court of South Africa

Kimberley

08 July 2020

[1] See p5, 1110 -1 4, 01/06/20, Record.