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South Africa Judgment

North West High Court, Mafikeng

S v Molekoa (HC. 40/12) [2012] ZANWHC 13 (26 April 2012)

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Research organized from the available case record

Source document

01

Holding and result

The magistrate exceeded his jurisdiction by imposing a sentence of R1000 or five months imprisonment for contravention of section 72(4) of Act 51 of 1977, which only permits a sentence of R300 or three months imprisonment. Furthermore, the record does not clearly indicate whether the accused surrendered himself or was brought in by warrant, and he had no previous convictions for this type of offence. Given these circumstances, the appropriate sentence should have been a caution and discharge. The original sentence is set aside and substituted accordingly.

Court disposition

The sentence imposed by the trial court is set aside and substituted with a caution and discharge.

Orders

  • The sentence of R1000 or five months imprisonment imposed for contravention of section 72(4) of Act 51 of 1977 is set aside.
  • The sentence is substituted with: 'Cautioned and discharged.'

02

Material facts

Parties

Paballo Bino Molekoa

Appellant

The State

Respondent

Amounts and remedies

  • Original Fine Imposed: ZAR 1,000
  • Statutory Maximum Fine: ZAR 300

03

Procedural history

  1. Posture

    Review Application / Special Review

04

Questions and positions

Legal issues

Party arguments

Applicant
The magistrate and Acting Chief Magistrate concede that the sentence imposed exceeded the jurisdiction provided by section 72(4) of Act 51 of 1977, which limits the sentence to R300 or three months imprisonment. They request that an appropriate sentence be imposed.
Respondent
No formal argument from the State is recorded, but the record indicates agreement with the concession that the magistrate exceeded his jurisdiction and that the sentence should be reviewed.

05

Court’s reasoning

  1. 01

    Section 72(4) of Act 51 of 1977

    A magistrate may not impose a sentence exceeding the statutory limits set by section 72(4) of Act 51 of 1977.

  2. 02

    General sentencing principles

    Where an accused fails to appear but there is uncertainty as to whether he surrendered himself, and has no previous convictions for such offences, a caution and discharge may be appropriate.

06

Ratio, limits and disposition

Ratio decidendi

The magistrate exceeded his jurisdiction by imposing a sentence of R1000 or five months imprisonment for contravention of section 72(4) of Act 51 of 1977, which only permits a sentence of R300 or three months imprisonment. Furthermore, the record does not clearly indicate whether the accused surrendered himself or was brought in by warrant, and he had no previous convictions for this type of offence. Given these circumstances, the appropriate sentence should have been a caution and discharge. The original sentence is set aside and substituted accordingly.

Obiter and limits

  • Magistrates must ensure that sentences imposed do not exceed statutory limits.
  • Where the facts are unclear regarding how an accused appears before court, leniency may be warranted.

Court disposition

The sentence imposed by the trial court is set aside and substituted with a caution and discharge.

  • The sentence of R1000 or five months imprisonment imposed for contravention of section 72(4) of Act 51 of 1977 is set aside.
  • The sentence is substituted with: 'Cautioned and discharged.'

Source and reliance status

North West High Court, Mafikeng

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Judgment reading view

Judgment text

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Source document

North West High Court, Mafikeng

Judgment

[2012] ZANWHC 13

IN THE HIGH

COURT OF SOUTH AFRICA

NORTH WEST HIGH COURT, MAFIKENG

HC . 40/12

In the matter between:-

PABALLO BINO

MOLEKOA ….............................................................Appellant

and

THE STATE ….....................................................................................Respondent

REVIEW

JUDGMENT

KGOELE J.

[1] The matter was sent to this court on special review undercover of a minute couched in the following terms:-

“The case is sent on a special review because the magistrate exceeded his jurisdiction when sentencing the accused.

The provision in-terms of section 72 (4) Act 51/1977 provides for a sentence of R300,00 or three months imprison(5) months imprisonment.

The magistrate agrees that he has exceeded his jurisdiction and therefore we request that appropriate sentence be imposed”

.

[2] It appears from the record of proceedings that the accused failed to appear as warned on the 14/12/10 and a warrant of arrest was authorised. He again appeared before court 5 days later on 19/12/2011. It is not clear from the record of proceeding whether he brought himself or was brought through a warrant of arrest by the police. Be it as it may, an inquiry was held by the presiding officer and he was consequently convicted.

[3] I am of the view that as correctly conceded by the presiding magistrate and the Acting Chief Magistrate the magistrate has exceeded his jurisdiction in as far as the sentence of the accused is concerned.

[4] I am also of the view that because there is no clear indication as to how accused ultimately appeared before court, there exist a possibility that he brought himself. The number of days that he absented himself from court is 5 days. He does not have a previous conviction of this type of an offence. I am of the view that this is a matter in which the presiding officer should have cautioned and discharged the accused.

[5] The following order is thus made:-

5.1 The sentence of the trial court to wit:– “One thousand rand (R1000) or Five (5) months imprisonment imposed for contravention of the provision of section 72 (4) of Act 51 of 1977” is set aside.

5.2 The sentence of the trial court is substituted with the following sentence:-

“Cautioned and discharged”

A.M. KGOELE

JUDGE OF THE

HIGH COURT

I agree

R.D.

HENDRICKS

DATED : 26 April 2012

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Section 72(4) of Act 51 of 1977

Legislation

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