S v Nkazane (296/08) [2008] ZAFSHC 67 (4 September 2008)

S v Nkazane (296/08) [2008] ZAFSHC 67 (4 September 2008)

The sentence of 28 months imprisonment imposed by the magistrate was incompetent as it exceeded the statutory maximum of 24 months for the offence of trespassing under section 1(1) of Act No. 6 of 1959. The reviewing court declined to impose the maximum sentence as suggested by the magistrate, considering that the accused was a first offender and pleaded guilty. The court found that a sentence of 12 months imprisonment, wholly suspended for 5 years on condition that the accused is not convicted of contravention of section 1 of Act No. 6 of 1959 during the suspension period, was appropriate and in the interests of justice.

Citation
[2008] ZAFSHC 67
Parties
Applicant: The State; Respondent: Nceba Nkazane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 September 2008
Case Number
296/08
Procedural Posture
Review Application / Sentence Review After Conviction
Outcome
Conviction confirmed; sentence set aside and replaced with a competent suspended sentence.
Judges
Beckley, Mabesela
Legal Topics
Sentencing Error, Maximum Sentence, Trespassing, First Offender, Suspended Sentence
Criminal Law Sentencing Error Maximum Sentence Trespassing First Offender Suspended Sentence

Case Brief

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Parties

The State

Applicant

Nceba Nkazane

Respondent

Procedural Posture

Review Application / Sentence Review After Conviction

Legal Issues

  1. 1 Whether the sentence imposed exceeded the statutory maximum for the offence of trespassing.
  2. 2 Whether the sentence should be set aside and replaced with a competent sentence.

Ratio Decidendi

The sentence of 28 months imprisonment imposed by the magistrate was incompetent as it exceeded the statutory maximum of 24 months for the offence of trespassing under section 1(1) of Act No. 6 of 1959. The reviewing court declined to impose the maximum sentence as suggested by the magistrate, considering that the accused was a first offender and pleaded guilty. The court found that a sentence of 12 months imprisonment, wholly suspended for 5 years on condition that the accused is not convicted of contravention of section 1 of Act No. 6 of 1959 during the suspension period, was appropriate and in the interests of justice.

Court Disposition

Conviction confirmed; sentence set aside and replaced with a competent suspended sentence.

Orders

  • The conviction is confirmed.
  • The sentence of 28 months imprisonment is set aside.