S v Mokoena (186/2013) [2013] ZAFSHC 185 (28 November 2013)

S v Mokoena (186/2013) [2013] ZAFSHC 185 (28 November 2013)

The magistrate erred by failing to attach a sanction to the compensation order, rendering it unenforceable. The proper approach is to suspend a portion of the sentence on condition that the accused pays the compensation to the complainant. The sentence is amended to include an 18-month wholly suspended imprisonment term, conditional upon payment of the outstanding R7 000 to the complainant by a specified date. Failure to pay will result in the suspended sentence coming into operation.

Citation
[2013] ZAFSHC 185
Parties
Applicant: THE STATE; Respondent: PHERENKGWANE JOSEPH MOKOENA
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 November 2013
Case Number
186/2013
Procedural Posture
Review Application / Special Review of Magistrate's Sentence
Outcome
The original sentence is set aside and replaced with a fine and a wholly suspended imprisonment term conditional on payment of compensation. The accused must pay the outstanding R7 000 to the complainant by 21 January 2014 or serve the suspended sentence.
Judges
KRUGER, NAIDOO
Legal Topics
Fraud, Compensation Order, Sentencing, Criminal Procedure Act Section 297, Criminal Procedure Act Section 298
Criminal Law Fraud Compensation Order Sentencing Criminal Procedure Act Section 297 Criminal Procedure Act Section 298

Case Brief

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Parties

THE STATE

Applicant

PHERENKGWANE JOSEPH MOKOENA

Respondent

Procedural Posture

Review Application / Special Review of Magistrate's Sentence

Legal Issues

  1. 1 Whether the magistrate's sentence properly enforced payment of compensation to the complainant.
  2. 2 Whether the sentence should be amended to include a sanction for non-payment of compensation.
  3. 3 Whether the magistrate's use of section 297 of the Criminal Procedure Act was correct.

Ratio Decidendi

The magistrate erred by failing to attach a sanction to the compensation order, rendering it unenforceable. The proper approach is to suspend a portion of the sentence on condition that the accused pays the compensation to the complainant. The sentence is amended to include an 18-month wholly suspended imprisonment term, conditional upon payment of the outstanding R7 000 to the complainant by a specified date. Failure to pay will result in the suspended sentence coming into operation.

Court Disposition

The original sentence is set aside and replaced with a fine and a wholly suspended imprisonment term conditional on payment of compensation. The accused must pay the outstanding R7 000 to the complainant by 21 January 2014 or serve the suspended sentence.

Orders

  • The sentence imposed on 13 April 2010 (or 30 April 2010) is set aside and replaced with a fine of R10 000 or 18 months’ imprisonment.
  • In addition, the accused is sentenced to 18 months’ imprisonment, wholly suspended on condition that he pays R10 000 to the complainant, Naledi Steda Biketeli, before 21 January 2014.