S v Makubo (R27/2023; Ash 18/20) [2023] ZAFSHC 109 (11 April 2023)

S v Makubo (R27/2023; Ash 18/20) [2023] ZAFSHC 109 (11 April 2023)

The Acting Regional Magistrate imposed a sentence of six years' imprisonment under section 276(1)(i) of the Criminal Procedure Act, which is statutorily limited to a maximum of five years. This constituted a misdirection and a failure of justice. The High Court, exercising its review powers under section 304(4) of the Criminal Procedure Act, set aside the unlawful sentence and substituted it with a sentence of five years' imprisonment, antedated to the original date of sentencing.

Citation
[2023] ZAFSHC 109
Parties
Applicant: The State; Respondent: Maqalengjoseph Makubo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 April 2023
Case Number
R27/2023
Procedural Posture
Criminal Review / Review of Sentence Imposed by Regional Magistrate
Outcome
Sentence imposed by the Regional Court set aside and substituted with a lawful sentence of five years' imprisonment, antedated to 29 October 2020.
Judges
Naidoo
Legal Topics
Sentencing Review, Minimum Sentences Act, Assault With Intent to Do Grievous Bodily Harm, Correctional Supervision, Magistrates Court Procedure
Criminal Law Sentencing Review Minimum Sentences Act Assault With Intent to Do Grievous Bodily Harm Correctional Supervision Magistrates Court Procedure

Case Brief

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Parties

The State

Applicant

Maqalengjoseph Makubo

Respondent

Procedural Posture

Criminal Review / Review of Sentence Imposed by Regional Magistrate

Legal Issues

  1. 1 Whether the sentence imposed by the Acting Regional Magistrate exceeded the statutory maximum permitted under section 276(1)(i) of the Criminal Procedure Act.
  2. 2 Whether the proceedings in which the sentence was imposed were in accordance with justice.
  3. 3 Whether the High Court should interfere with the sentence to ensure the interests of justice are served.

Ratio Decidendi

The Acting Regional Magistrate imposed a sentence of six years' imprisonment under section 276(1)(i) of the Criminal Procedure Act, which is statutorily limited to a maximum of five years. This constituted a misdirection and a failure of justice. The High Court, exercising its review powers under section 304(4) of the Criminal Procedure Act, set aside the unlawful sentence and substituted it with a sentence of five years' imprisonment, antedated to the original date of sentencing.

Court Disposition

Sentence imposed by the Regional Court set aside and substituted with a lawful sentence of five years' imprisonment, antedated to 29 October 2020.

Orders

  • The sentence of six years' imprisonment imposed by the Regional Court is set aside.
  • The accused is sentenced to five years' imprisonment under section 276(1)(i) of the Criminal Procedure Act 51 of 1977.