S v Mbewu (214517) [2009] ZAECHC 8 (29 January 2009)

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) REVIEW REF NO.:214517

In the matter between

THE

STATE

And

NONTOMBI

MBEWU

REVIEW JUDGEMENT

NHLANGULELA, J:

[1] After the conclusion of the trial and sentencing on 2 November 2008 the learned senior magistrate, Mr Msingaphantsi, now brings the record to this Court for correction of sentence which had been imposed by the trial magistrate. The sentence reads :

“ A fine of R500,00 (Five Hundred rands) or in default of payment - remain in jail for at least 30 days”

[2] The background facts of this case and the reasons for the request of the senior magistrate are fully set out in a memorandum which he referred to this Court together with the record of the proceedings. The memorandum reads :

“ During the routine checking of finalized cases it has been observed that the above mentioned case requires the attention of the Honourable Reviewing Judge for the following reasons:

1. The accused was charged with and convicted of theft of

property valued at R132-80.

2. According to the face of the charge sheet (J15), she was

sentenced to pay a fine of R500-00 or in default of

payment – a period (sic) of imprisonment for 30 years.

On last page (sic) of the record of proceedings the sentence

is recorded as follows : ‘a fine of R500-00 or in default of payment – remain in jail for at least 30 days’.

4. It is the considered view that the magistrate who dealt with

the matter is now functus officio and as such he cannot

correct the record.

5. Without being prescriptive, it appears from the record of

proceedings that the accused ought to have been sentenced

to pay a fine of five hundred rand (R500-00) or in default of

payment to undergo thirty days imprisonment”

[3] I am in full agreement with the magistrate that the sentencing court being functus officio there is not more it could do with the problem which only emerged in December 2008. Neither do the provisions of s 298 of the Criminal Procedure Act 51 of 1977 provide a remedy for the magistrate. Section 298 of the Act reads :

“ When by mistake a wrong sentence is passed, the Court may, before or immediately after it is recorded, amend the sentence”.

[4] I agree with the magistrate’s insistence that the sentence should be rectified because to do so will give certainty to a future court dealing with sentencing of the accused in the event that she is again convicted of a similar crime. Further, the

difference between 30 days and 30 years, the comparison between the primary sentence of a fine and the alternative sentence of

imprisonment and the manner of formulation of the sentence have resulted in a grossly disproportionate and severe sentence which

calls for interference by this Court.

[5] To my mind the true intention of the trial magistrate can at best be ascertained from the record of the proceeding; the charge sheet being an annexure thereto. Whereas the record is a device, as in tapes discs or paper, in which everything that happens during the trial is captured the charge sheet is a document that is drawn by the prosecutor before the trial and presented to the court to show the nature of the charge which has been preferred against the accused. The recordal of the imposed sentence on the charge sheet can only take place at the end of the trial when the verdict and sentence would have already been recorded in the tapes, disc or on paper. On the aforegoing, the written record would then be a reliable source to be used in ascertaining the

intention of the sentencing court. It may be stated further that the glaring disproportionality between the primary sentence of R500,00 fine and the alternative term of 30 years imprisonment lend support to the conclusion that 30 days was an intended sentence. To say that the sentencing court intended to impose an alternative sentence of 30 years would be unreasonable and nonsensical in my view. A district court does not have jurisdiction to impose such a sentence. I therefore conclude that the formulation of sentence in the terms as suggested by the learned senior magistrate is correct.

[6] As I proceed to make a final order I am mindful of the fact that the accused would have already served 30 days in prison if she was unable to pay the fine. If not, setting aside the imposed sentence would go a long way towards ameliorating the hardship of being incarcerated for a long and unjust period of 30 years.

[7] In the result the following order shall issue :

The conviction shall stand.

The sentence is set aside and replaced by the following sentence; ante-dated to 12 November 2008 :

“ To pay a fine of R500,00 (five hundred rand) or in default of payment to undergo imprisonment for 30 (thirty) days”.

________

Z M NHLANGULELA

JUDGE OF THE HIGH COURT

I agree : PETSE ADJP

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