S v Tshweise and Others (R154/2017) [2017] ZAFSHC 237 (10 November 2017)

S v Tshweise and Others (R154/2017) [2017] ZAFSHC 237 (10 November 2017)

The court found that the sentence imposed by the acting magistrate was irregular because it was a suspended fine without the necessary conditions that the accused should not be found guilty of theft during the suspension period. Since the magistrate's contract had ended, the trial court was functus officio and could not correct the sentence. The review court therefore set aside the irregular sentence and substituted it with a proper sentence: a fine of R500 or 50 days imprisonment, wholly suspended for two years on condition that the accused are not found guilty of theft during the suspension period.

Citation
[2017] ZAFSHC 237
Parties
Applicant: The State; Respondent: Dibuseng Tshweise; Respondent: Refiloe Phumane; Respondent: Kediemetse Mothibibi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
10 November 2017
Case Number
R154/2017
Procedural Posture
Review Application / Special Review Under Section 304(4) of the Criminal Procedure Act
Outcome
Conviction upheld; sentence set aside and substituted with a suspended fine or imprisonment.
Judges
S. Chesiwe, J.J. Mhlambi
Legal Topics
Theft, Sentencing Irregularity, Functus Officio, Suspended Sentence
Criminal Law Civil Procedure Theft Sentencing Irregularity Functus Officio Suspended Sentence

Case Brief

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Parties

The State

Applicant

Dibuseng Tshweise

Respondent

Refiloe Phumane

Respondent

Kediemetse Mothibibi

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 magistrate was irregular and required correction.
  2. 2 Whether the sentencing court was functus officio after pronouncing sentence and the magistrate's contract termination.
  3. 3 What is the appropriate substituted sentence for the accused.

Ratio Decidendi

The court found that the sentence imposed by the acting magistrate was irregular because it was a suspended fine without the necessary conditions that the accused should not be found guilty of theft during the suspension period. Since the magistrate's contract had ended, the trial court was functus officio and could not correct the sentence. The review court therefore set aside the irregular sentence and substituted it with a proper sentence: a fine of R500 or 50 days imprisonment, wholly suspended for two years on condition that the accused are not found guilty of theft during the suspension period.

Court Disposition

Conviction upheld; sentence set aside and substituted with a suspended fine or imprisonment.

Orders

  • The conviction stands.
  • The sentence is set aside and replaced with a fine of R500 or 50 days imprisonment, wholly suspended for two years on condition that the accused are not found guilty of theft during the period of suspension.