S v Motingwe (311/2017) [2017] ZAGPPHC 884 (1 November 2017)

S v Motingwe (311/2017) [2017] ZAGPPHC 884 (1 November 2017)

The Regional Magistrate exceeded the sentencing jurisdiction by imposing eight years' imprisonment under section 276(1)(i) of the Criminal Procedure Act, where the statutory maximum is five years. The sentence was not competent and had to be set aside. The High Court, having considered the same aggravating and mitigating circumstances, substituted the sentence with five years' imprisonment on each count, to run concurrently, in accordance with the statutory limit and the interests of justice.

Citation
[2017] ZAGPPHC 884
Parties
Applicant: The State; Respondent: Joseph Motingwe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 November 2017
Case Number
311/2017
Procedural Posture
Review Application / Special Review of Sentence Imposed by Regional Court
Outcome
The sentences imposed by the Regional Magistrate are set aside and replaced with five years' imprisonment on each count, to run concurrently.
Judges
C Pretorius, C J van der Westhuizen
Legal Topics
Sentencing Jurisdiction, Correctional Supervision, Housebreaking and Theft, Firearm Disqualification
Criminal Law Sentencing Jurisdiction Correctional Supervision Housebreaking and Theft Firearm Disqualification

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Parties

The State

Applicant

Joseph Motingwe

Respondent

Procedural Posture

Review Application / Special Review of Sentence Imposed by Regional Court

Legal Issues

  1. 1 Whether the Regional Magistrate exceeded sentencing jurisdiction under section 276(1)(i) of the Criminal Procedure Act by imposing eight years' imprisonment.
  2. 2 What is the competent sentence under section 276(1)(i) of the Criminal Procedure Act for the offences committed.

Ratio Decidendi

The Regional Magistrate exceeded the sentencing jurisdiction by imposing eight years' imprisonment under section 276(1)(i) of the Criminal Procedure Act, where the statutory maximum is five years. The sentence was not competent and had to be set aside. The High Court, having considered the same aggravating and mitigating circumstances, substituted the sentence with five years' imprisonment on each count, to run concurrently, in accordance with the statutory limit and the interests of justice.

Court Disposition

The sentences imposed by the Regional Magistrate are set aside and replaced with five years' imprisonment on each count, to run concurrently.

Orders

  • The sentences imposed by the Regional Court Magistrate, Christiana, in terms of section 276 of the Criminal Procedure Act 51 of 1977 dated 19 July 2017, are set aside.
  • The accused is sentenced in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977 to a period of imprisonment of five years on each of the two counts.