S v Modisane (38/03) [2003] ZANWHC 14 (27 March 2003)

CA NO : 38/03

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

RAPULA

NICOLUS MODISANE

R

E V I E W J U D G M E N T

LEEUW J:

The accused was arraigned in the Magistrate Court on a charge of Robbery. He pleaded guilty and was accordingly convicted and

sentenced to “three (3) years imprisonment six (6) months of which is suspended for five (5) years on condition accused is not convicted of robbery committed during the period of suspension.”

The conviction is in order. With regard to sentence, the State did not prove any previous convictions against the accused. In mitigation of sentence, the accused disclosed the fact that he has a previous conviction of rape for which he was sentenced to five (5) years imprisonment in Rustenburg on the 5th February 1977. He further informed the court that he was released on parole on the 4th August 2001. In sentencing the accused, the learned Magistrate stated the following: “You are not a new-comer to being in transgression of the law. In 1977 you were convicted of rape on 5 February 1977 and sentenced to 5 years. You were released on 4 August 2001. More or less 1 year later you commit a further assault and steal from a woman.” I queried the learned Magistrate for relying on the information from an accused person with regard to his previous conviction. In his response, the learned Magistrate stated that he was greatly influenced by the fact that the accused was not a first offender when he passed the sentence and conceded that the sentence imposed is too harsh under the circumstances of this case; he further conceded that he misdirected himself by relying on the information from the accused with regard to the previous convictions.

The conviction is in order. With regard to sentence, the State did not prove any previous convictions against the accused. In mitigation of sentence, the accused disclosed the fact that he has a previous conviction of rape for which he was sentenced to five (5) years imprisonment in Rustenburg on the 5th February 1977. He further informed the court that he was released on parole on the 4th August 2001.

In sentencing the accused, the learned Magistrate stated the following:

“You are not a new-comer to being in transgression of the law. In 1977 you were convicted of rape on 5 February 1977 and sentenced to 5 years. You were released on 4 August 2001. More or less 1 year later you commit a further assault and steal from a woman.”

I queried the learned Magistrate for relying on the information from an accused person with regard to his previous conviction. In his response, the learned Magistrate stated that he was greatly influenced by the fact that the accused was not a first offender when he passed the sentence and conceded that the sentence imposed is too harsh under the circumstances of this case; he further conceded that he misdirected himself by relying on the information from the accused with regard to the previous convictions.

Section 271 (1) of the Criminal Procedure Act No 51 of 1977 (the Act) gives State the discretion to prove previous convictions after the conviction of an accused person. In terms of section 271 (4), if the accused admits the previous conviction(s) the Court is obliged to take that into account in considering an appropriate sentence. The onus is on the State to prove previous convictions beyond reasonable doubt and the procedure for the proof thereof is contained in section 271 of the Act. It is therefore irregular for the presiding officer to rely on information provided by an accused person for the purpose of

proving previous convictions. Compare S v Groenewald 1992 (1) SACR 254 (C) at 258 e - h. See also S v Hlongomva 1999 (1) SACR 173 (ECD). The details of the previous convictions in this case cannot be correct because if indeed he was sentenced in 1977 to a term of imprisonment of five (5) years, he could not have been released in the year 2001. This indicates the importance of the strict compliance with section 271 of the Act. Compare S v Hlongomva supra on p 176 a - e.

Section 271 (1) of the Criminal Procedure Act No 51 of 1977 (the Act) gives State the discretion to prove previous convictions after the conviction of an accused person. In terms of section 271 (4), if the accused admits the previous conviction(s) the Court is obliged to take that into account in considering an appropriate sentence.

The onus is on the State to prove previous convictions beyond reasonable doubt and the procedure for the proof thereof is contained in section 271 of the Act.

It is therefore irregular for the presiding officer to rely on information provided by an accused person for the purpose of

proving previous convictions. Compare S v Groenewald 1992 (1) SACR 254 (C) at 258 e - h. See also S v Hlongomva 1999 (1) SACR 173 (ECD).

The details of the previous convictions in this case cannot be correct because if indeed he was sentenced in 1977 to a term of imprisonment of five (5) years, he could not have been released in the year 2001. This indicates the importance of the strict compliance with section 271 of the Act. Compare S v Hlongomva supra on p 176 a - e.

In view of the abovementioned irregularity, I am at liberty to interfere with the sentence. The sentence imposed induces a sense of shock because of the following: (a) The cell-phone was recovered; (b) The accused pleaded guilty to the charge, and (c) for all purpose ought to have been treated as a first offender. I accordingly make the following order: “[1] The conviction is confirmed. [2] The sentence imposed on the 12th February 2003 is set aside and the following substituted therefor: Two (2) years imprisonment of which One (1) year is suspended for a period of Three (3) years on condition that the accused is not convicted of robbery committed during the period of suspension.

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

B

E NKABINDE

JUDGE

OF THE HIGH COURT 27 MARCH 2003

In view of the abovementioned irregularity, I am at liberty to interfere with the sentence. The sentence imposed induces a sense of shock because of the following:

(a) The cell-phone was recovered;

(b) The accused pleaded guilty to the charge, and

(c) for all purpose ought to have been treated as a first offender.

I accordingly make the following order:

“[1] The conviction is confirmed.

[2] The sentence imposed on the 12th February 2003 is set aside and the following substituted therefor: Two (2) years imprisonment of which One (1) year is suspended for a period of Three (3) years on condition that the accused is not convicted of robbery committed during the period of suspension.

M

M LEEUW

JUDGE

OF THE HIGH COURT

I agree.

B

E NKABINDE

27 MARCH 2003