S v Mokgadi and Others (14/2001) [2001] ZANWHC 14 (15 March 2001)

CA NO : 14/2001

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

1.

MOGOMPU PETRUS MOKGADI

2.

LEVY KAU

3.

HENDRICK SANA MATLAKALA

4.

SEKIKANA

JOSEPH KGASOE

REVIEW

JUDGMENT

LEEUW J: The four accused appeared before the Magistrate of Mogwase on a charge of Stock Theft. It is alleged that they stole one beast valued at R3000.00 belonging to Shadrack Ramokopelwa, the complainant. All four accused persons pleaded guilty to the charge and on questioning in terms of section 112 (1) (b) of the Criminal Procedure No 51 of 1977 (the Act), a plea of not guilty was entered in respect of the First and Second Accused.

The Public Prosecutor applied for a separation of trials and the case was finalized against the Third and Fourth Accused without any evidence being led by the State.

The conviction of the Third and Fourth Accused is in order, but the sentence was as follows: “R2000 in default 8 months wholly suspended for 3 years on condition that accused are not convicted of theft read with the provisions of Act 57/59 to wit Stock Theft committed during the period of suspension and in respect of which the accused are sentenced to imprisonment term without an option of a fine. Further in terms of section 300 Act 51/77 both accused are ordered to compensate the complainant at the rate of R1500 each. This payment to be made in full by month end February 2001.” I sent a query to the Learned Magistrate with regard to her competence to make a compensatory order in terms of section 300 of the Act without having been request to do so by the complainant. In response to my query, the Learned Magistrate stated that even though there is no application for compensation made on behalf of the complainant, she was persuaded by the fact that both accused had indicated their willingness to pay compensation to the complainant for the loss of her beast and further that she was avoiding sending accused to prison.

The conviction of the Third and Fourth Accused is in order, but the sentence was as follows:

“R2000 in default 8 months wholly suspended for 3 years on condition that accused are not convicted of theft read with the provisions of Act 57/59 to wit Stock Theft committed during the period of suspension and in respect of which the accused are sentenced to imprisonment term without an option of a fine. Further in terms of section 300 Act 51/77 both accused are ordered to compensate the complainant at the rate of R1500 each. This payment to be made in full by month end February 2001.”

I sent a query to the Learned Magistrate with regard to her competence to make a compensatory order in terms of section 300 of the Act without having been request to do so by the complainant.

In response to my query, the Learned Magistrate stated that even though there is no application for compensation made on behalf of the complainant, she was persuaded by the fact that both accused had indicated their willingness to pay compensation to the complainant for the loss of her beast and further that she was avoiding sending accused to prison.

The Court, in making a compensatory order, is not only restricted to the provisions of section 300 of the Act. Section 297 (1) (a) (i) (aa) of the Act also makes provision for a compensatory fine which can be made a condition of the suspension. Furthermore, the provisions of section 15 of the Stock Theft Act, as amended by the Stock Theft Amendment Act 28 of 1990, provide that in cases where the complainant, whose stock was stolen and has suffered loss as a result thereof, it is peremptory for the Magistrate to bring the provisions of section 300 of the Act, to the attention of the complainant. Failure by the Magistrate to do so, would amount to an irregularity. See S v Lepale 1979 (1) SA 117 (BSC) at 119 C. It is also not clear from the record of proceedings, whether the two other accused, whose case was tried separately, were taken into consideration when the compensatory order was made. The compensatory order has not been made an alternative to an imprisonment sentence and it would therefore be undesirable to alter the order at this stage, especially in view of the fact that the accused were ordered to pay the compensation by the end of February 2001. I therefore find that the compensatory order granted by the Magistrate was not in accordance with justice and accordingly make the following order: “The conviction is confirmed. The sentence and the compensatory order are set aside and the matter remitted to the Magistrate. She is directed to apply the provisions of section 15 of the Stock Theft Act No 57 of 1959 as Amended, and to pass an appropriate sentence.”

M M

LEEUW

JUDGE OF

THE HIGH COURT I agree.

M

T R MOGOENG

JUDGE OF

THE HIGH COURT 15 MARCH 2001

The Court, in making a compensatory order, is not only restricted to the provisions of section 300 of the Act. Section 297 (1) (a) (i) (aa) of the Act also makes provision for a compensatory fine which can be made a condition of the suspension. Furthermore, the provisions of section 15 of the Stock Theft Act, as amended by the Stock Theft Amendment Act 28 of 1990, provide that in cases where the complainant, whose stock was stolen and has suffered loss as a result thereof, it is peremptory for the Magistrate to bring the provisions of section 300 of the Act, to the attention of the complainant. Failure by the Magistrate to do so, would amount to an irregularity. See S v Lepale 1979 (1) SA 117 (BSC) at 119 C.

It is also not clear from the record of proceedings, whether the two other accused, whose case was tried separately, were taken into consideration when the compensatory order was made.

The compensatory order has not been made an alternative to an imprisonment sentence and it would therefore be undesirable to alter the order at this stage, especially in view of the fact that the accused were ordered to pay the compensation by the end of February 2001.

I therefore find that the compensatory order granted by the Magistrate was not in accordance with justice and accordingly make the following order:

“The conviction is confirmed. The sentence and the compensatory order are set aside and the matter remitted to the Magistrate. She is directed to apply the provisions of section 15 of the Stock Theft Act No 57 of 1959 as Amended, and to pass an appropriate sentence.”

M M

LEEUW

JUDGE OF

THE HIGH COURT

I agree.

M

T R MOGOENG

15 MARCH 2001