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South Africa Judgment

North Gauteng High Court, Pretoria

S v Makua (A183/09) [2009] ZAGPPHC 62 (6 March 2009)

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Source document

01

Holding and result

The magistrate intended to impose a suspended sentence but failed to do so in a legally effective manner. The High Court, upon special review, confirmed the conviction and set aside the original sentence, substituting it with a properly formulated suspended sentence in terms of section 297(1)(b) of the Criminal Procedure Act. The substituted sentence suspends six months' imprisonment for three years, subject to specific conditions including community service, attendance of various programs, reporting to a correctional officer, and notification of address changes. This ensures the sentence is both lawful and enforceable.

Court disposition

Conviction confirmed; original sentence set aside and substituted with a suspended sentence subject to conditions.

Orders

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The following sentence is substituted: In terms of section 297(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977), the accused is sentenced to six months' imprisonment, wholly suspended for three years on condition that the accused perform sixteen hours of community service without remuneration and outside the prison for six months under Correctional Services supervision, consisting of cleaning and/or gardening at Laersdrift Police Station on Thursdays between 08:00 and 16:00; attend and complete conflict management, anger management, relationship, and HIV/AIDS programs; report to the Correctional Officer at Belfast on 21 November 2008 at 08:00; and not change his residential address without prior notification to the Commissioner of Correctional Services.

02

Material facts

Parties

The State

Respondent

Simon Makua

Applicant

Amounts and remedies

  • Imprisonment Months: 6
  • Suspension Years: 3
  • Community Service Hours: 16

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused pleaded guilty to assault with intent to do grievous bodily harm and accepted the sentence as imposed, which included community service under supervision.
Respondent
The magistrate requested that the sentence be replaced with a properly formulated suspended sentence, as the original order did not achieve the intended legal effect.

05

Court’s reasoning

  1. 01

    Criminal Procedure Act, 1977 (Act 51 of 1977), section 297

    A suspended sentence must be clearly formulated to ensure that the suspension and its conditions are legally enforceable.

  2. 02

    S v Makua (A183/09) [2009] ZAGPPHC 62

    The court may substitute a sentence on review if the original sentence does not comply with statutory requirements.

06

Ratio, limits and disposition

Ratio decidendi

The magistrate intended to impose a suspended sentence but failed to do so in a legally effective manner. The High Court, upon special review, confirmed the conviction and set aside the original sentence, substituting it with a properly formulated suspended sentence in terms of section 297(1)(b) of the Criminal Procedure Act. The substituted sentence suspends six months' imprisonment for three years, subject to specific conditions including community service, attendance of various programs, reporting to a correctional officer, and notification of address changes. This ensures the sentence is both lawful and enforceable.

Obiter and limits

  • The formulation of sentences must comply strictly with statutory requirements to avoid ambiguity and ensure enforceability.
  • Community service as a condition of suspension must be clearly specified regarding location, duration, and nature of work.

Court disposition

Conviction confirmed; original sentence set aside and substituted with a suspended sentence subject to conditions.

  • The conviction is confirmed.
  • The sentence imposed by the magistrate is set aside.
  • The following sentence is substituted: In terms of section 297(1)(b) of the Criminal Procedure Act, 1977 (Act 51 of 1977), the accused is sentenced to six months' imprisonment, wholly suspended for three years on condition that the accused perform sixteen hours of community service without remuneration and outside the prison for six months under Correctional Services supervision, consisting of cleaning and/or gardening at Laersdrift Police Station on Thursdays between 08:00 and 16:00; attend and complete conflict management, anger management, relationship, and HIV/AIDS programs; report to the Correctional Officer at Belfast on 21 November 2008 at 08:00; and not change his residential address without prior notification to the Commissioner of Correctional Services.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2009] ZAGPPHC 62

IN

THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG PROVINCIAL DIVISION)

DATE: 6 March 2009

MAGISTRATE

MIDDELBURG

Case No: 1893/2008

Magistrate's serial no: 33/08

High Court Ref No: 22

THE

STATE VS SIMON MAKUA

REVIEW

JUDGMENT

BOTHA J:

This is a special review. The accused was convicted of assault with intent to do grievous bodily harm.

The accused pleaded guilty and he was found guilty on the basis of a written plea explanation submitted by his attorney.

The accused was sentenced to six months' imprisonment'but it was ordered that he be released on condition that he perform community service under the supervision of a correctional officer.

The magistrate sent the matter on special review asking that the sentence be replaced by a sentence of six months' imprisonment suspended on the conditions set out in the sentence.

The magistrate clearly intended to impose a suspended sentence, but his formulation did not quite achieve that effect.

I shall substitute a sentence as suggested in the memorandum of the state advocates.

The following order is made:

1. The conviction is confirmed.

2. The sentence imposed by the magistrate is set aside and the following sentence is substituted for it:

"In terms of section 297(1 (b) of the Criminal Procedure Act, 1977 (Act 51 of 1977) the accused is sentenced to 6 (six) months imprisonment in whole suspended for a period of 3 (three) years on condition that (i) the accused perform 16 (sixteen) hours of community service, without remuneration and outside the prison, for a period of 6 (six) months under the supervision of Correctional Services. Such community service to consist of cleaning and/or gardening, to be rendered at Laersdrift Police Station on Thursdays between 08:00 and 16:00; (ii) the accused must attend and complete a conflict management program and an anger management program and a relationship program and a HIV/AIDS program; (iii) the accused must report to the Correctional Officer at Belfast on 21 November 2008 at 08:00; (iv) the accused may not change his residential address without prior notification to Commissioner of Correctional Services".

C

BOTHA

JUDGE

OF THE HIGH COURT

I agree

C.J

EKSTEEN

ACTING

JUDGE OF THE HIGH COURT

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Authorities

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S v Makua (A183/09) [2009] ZAGPPHC 62

Case cited

Criminal Procedure Act, 1977 (Act 51 of 1977), section 297

Legislation

Legislation referenced in the available case record.

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