S v Mpharu (147/2014) [2014] ZAFSHC 133 (4 September 2014)

S v Mpharu (147/2014) [2014] ZAFSHC 133 (4 September 2014)

The magistrate was not empowered to invoke Section 276B of the Criminal Procedure Act because the sentence imposed was only three months' imprisonment, which is below the statutory threshold of two years required for fixing a non-parole period. The order fixing a non-parole period was therefore irregular and resulted in a failure of justice. The court set aside the magistrate's order invoking Section 276B, but confirmed the conviction and sentence.

Citation
[2014] ZAFSHC 133
Parties
Applicant: The State; Respondent: Thabiso Petrus Mpharu
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2014
Case Number
147/2014
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
The magistrate's order invoking Section 276B of Act 51 of 1977 is set aside; the conviction and sentence are confirmed.
Judges
L le R POHL, A F JORDAAN
Legal Topics
Sentencing Irregularity, Parole Eligibility, Criminal Procedure Act, Non Parole Period
Criminal Law Sentencing Irregularity Parole Eligibility Criminal Procedure Act Non Parole Period

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Parties

The State

Applicant

Thabiso Petrus Mpharu

Respondent

Procedural Posture

Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the magistrate was empowered to invoke Section 276B of the Criminal Procedure Act for a sentence less than two years.
  2. 2 Whether the fixing of a non-parole period for a three-month sentence constituted an irregularity resulting in a failure of justice.

Ratio Decidendi

The magistrate was not empowered to invoke Section 276B of the Criminal Procedure Act because the sentence imposed was only three months' imprisonment, which is below the statutory threshold of two years required for fixing a non-parole period. The order fixing a non-parole period was therefore irregular and resulted in a failure of justice. The court set aside the magistrate's order invoking Section 276B, but confirmed the conviction and sentence.

Court Disposition

The magistrate's order invoking Section 276B of Act 51 of 1977 is set aside; the conviction and sentence are confirmed.

Orders

  • The magistrate’s order invoking the provisions of Section 276B of Act 51 of 1977 is set aside.
  • The conviction and sentence are confirmed.