S v Mathabela [2009] ZAFSHC 134 (19 November 2009)

S v Mathabela [2009] ZAFSHC 134 (19 November 2009)

The magistrate imposed a sentence of 28 months' imprisonment, wholly suspended for 5 years, for contravention of the Trespass Act. The Act prescribes a maximum sentence of 24 months' imprisonment. The magistrate acknowledged her error and requested the High Court to substitute a lawful sentence, noting practical difficulties in recalling the accused for resentencing. The High Court confirmed that the sentence was ultra vires and not competent. The conviction was confirmed, and the sentence was set aside and replaced with 24 months' imprisonment, wholly suspended for 5 years on condition that the accused is not convicted of a further contravention of the Trespass Act during the period of...

Citation
[2009] ZAFSHC 134
Parties
Applicant: The State; Respondent: Moses Mathabela
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 November 2009
Case Number
559/2009
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction confirmed; sentence set aside and replaced with a lawful suspended sentence.
Judges
M B Molemela, K J Moloi
Legal Topics
Sentencing Powers, Trespass Act, Ultra Vires, Suspended Sentence
Criminal Law Sentencing Powers Trespass Act Ultra Vires Suspended Sentence

Case Brief

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Parties

The State

Applicant

Moses Mathabela

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the magistrate acted ultra vires by imposing a sentence exceeding the statutory maximum under the Trespass Act.
  2. 2 Whether the sentence imposed is competent and lawful.
  3. 3 What is the appropriate sentence to be substituted for the unlawful sentence.

Ratio Decidendi

The magistrate imposed a sentence of 28 months' imprisonment, wholly suspended for 5 years, for contravention of the Trespass Act. The Act prescribes a maximum sentence of 24 months' imprisonment. The magistrate acknowledged her error and requested the High Court to substitute a lawful sentence, noting practical difficulties in recalling the accused for resentencing. The High Court confirmed that the sentence was ultra vires and not competent. The conviction was confirmed, and the sentence was set aside and replaced with 24 months' imprisonment, wholly suspended for 5 years on condition that the accused is not convicted of a further contravention of the Trespass Act during the period of...

Court Disposition

Conviction confirmed; sentence set aside and replaced with a lawful suspended sentence.

Orders

  • The conviction of the accused is confirmed.
  • The sentence is set aside and replaced with 24 months' imprisonment wholly suspended for 5 years on condition that the accused is not convicted of contravention of section 1(1) read with sections 1(1A), 1(2) and 2 of the Trespass Act 6 of 1959 committed during the period of suspension.