S v Nkomo (SH26/2018) [2024] ZANWHC 69; 2024 (2) SACR 109 (NWM) (11 March 2024)

S v Nkomo (SH26/2018) [2024] ZANWHC 69; 2024 (2) SACR 109 (NWM) (11 March 2024)

The Regional Magistrate was not empowered to correct the sentence under section 298 of the Criminal Procedure Act because the correction was made after the court had adjourned and in the absence of the accused, rendering the magistrate functus officio. The technical mistake in the sentence, which referenced murder instead of culpable homicide, did not accord with the real intention of the court and required correction through special review. The High Court, acting under section 304(4) of the Criminal Procedure Act, corrected the sentence to reflect the conviction for culpable homicide as the suspensive condition, ensuring procedural fairness and alignment with the merits of the case.

Citation
[2024] ZANWHC 69
Parties
Applicant: The State; Respondent: Meshack Nkomo
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
11 March 2024
Case Number
SH26/2018
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
The sentence imposed on 31 August 2021 is reviewed and corrected to replace the reference to murder with culpable homicide as the suspensive condition. The sentence remains extant from the date of imposition.
Judges
A H Petersen, A Reddy
Legal Topics
Culpable Homicide, Sentencing Correction, Functus Officio, Criminal Procedure Act, Special Review
Criminal Law Civil Procedure Culpable Homicide Sentencing Correction Functus Officio Criminal Procedure Act Special Review

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Parties

The State

Applicant

Meshack Nkomo

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the sentence imposed by the Regional Magistrate could be corrected under section 298 of the Criminal Procedure Act.
  2. 2 Whether the correction of the sentence was valid when conducted in the absence of the accused.
  3. 3 Whether the sentence should reflect the conviction for culpable homicide rather than murder.

Ratio Decidendi

The Regional Magistrate was not empowered to correct the sentence under section 298 of the Criminal Procedure Act because the correction was made after the court had adjourned and in the absence of the accused, rendering the magistrate functus officio. The technical mistake in the sentence, which referenced murder instead of culpable homicide, did not accord with the real intention of the court and required correction through special review. The High Court, acting under section 304(4) of the Criminal Procedure Act, corrected the sentence to reflect the conviction for culpable homicide as the suspensive condition, ensuring procedural fairness and alignment with the merits of the case.

Court Disposition

The sentence imposed on 31 August 2021 is reviewed and corrected to replace the reference to murder with culpable homicide as the suspensive condition. The sentence remains extant from the date of imposition.

Orders

  • The sentence imposed on 31 August 2021 is reviewed and corrected by replacing the offence of murder with culpable homicide as part of the condition of suspension.
  • Ten (10) years imprisonment of which three (3) years imprisonment is suspended for a period of five (5) years on condition that the accused is not convicted of culpable homicide committed during the period of suspension.