S v Shirinda (132/2002) [2002] ZANWHC 48 (12 December 2002)

S v Shirinda (132/2002) [2002] ZANWHC 48 (12 December 2002)

The court held that the fine of R10,000 imposed by the Magistrate was excessive and not reasonably possible for the accused to pay, given his monthly income of R950 as a casual worker. The trial court failed to conduct a sufficient inquiry into the accused's ability to pay the fine or consider alternatives such as payment by instalments. The principles established in S v Lekgoale and S v Sithole require that the option of a fine must be real and not illusory, and that the court must inquire into the accused's financial means unless circumstances are obvious. The matter was remitted to the Magistrate to conduct a proper inquiry and reconsider the sentence in light of these principles.

Citation
[2002] ZANWHC 48
Parties
Applicant: The State; Respondent: Josias Shirinda
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 December 2002
Case Number
132/2002
Procedural Posture
Review Application / Automatic Review of Sentence
Outcome
Sentence set aside and matter remitted to the trial Magistrate for further inquiry and reconsideration of sentence.
Judges
J H F Pistor, H N Hendler
Legal Topics
Sentencing Principles, Option of Fine, Ability to Pay, Housebreaking and Theft
Criminal Law Sentencing Principles Option of Fine Ability to Pay Housebreaking and Theft

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Josias Shirinda

Respondent

Procedural Posture

Review Application / Automatic Review of Sentence

Legal Issues

  1. 1 Whether the fine imposed was so excessive that it was not reasonably possible for the accused to pay it.
  2. 2 Whether the trial court properly inquired into the accused's ability to pay the fine.
  3. 3 Whether the sentence should be set aside and the matter remitted for further inquiry.

Ratio Decidendi

The court held that the fine of R10,000 imposed by the Magistrate was excessive and not reasonably possible for the accused to pay, given his monthly income of R950 as a casual worker. The trial court failed to conduct a sufficient inquiry into the accused's ability to pay the fine or consider alternatives such as payment by instalments. The principles established in S v Lekgoale and S v Sithole require that the option of a fine must be real and not illusory, and that the court must inquire into the accused's financial means unless circumstances are obvious. The matter was remitted to the Magistrate to conduct a proper inquiry and reconsider the sentence in light of these principles.

Court Disposition

Sentence set aside and matter remitted to the trial Magistrate for further inquiry and reconsideration of sentence.

Orders

  • The sentence imposed by the trial court is set aside.
  • The matter is remitted to the trial Magistrate to conduct an enquiry into the accused's ability to pay a suitable fine, whether directly or in instalments, and to reconsider the whole question of sentence thereafter, bearing in mind the remarks contained in this judgment, and to then impose a suitable sentence.