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

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: R154/2017

In the matter between:

THE

STATE

and

DIBUSENG

TSHWEISE Accused

1

REFILOE

PHUMANE Accused

2

KEDIEMETSE MOTHIBIBI Accused 3

CORAM:

MHLAMBII Jet CHESIWEI AJ

JUDGMENT BY: CHESIWE, AJ

DELIVERED ON: 10 NOVEMBER 2017

REVIEW

JUDGMENT

1. This is a special review in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 (CPA). The review judge is called upon upon to set aside the sentence of the trial court and substitute it with the correct sentence.

2. The accused 1, 2 and 3 appeared in the Magistrates Court of the district of Bloemfontein. They were all charged on a count of theft. In that on or about 22 Feb 2017 the accused wrongfully and intentionally stole four tins of 526 Progress formula baby milk

valued at R1263 from the Pick and Pay store.

3. The accused conducted their own defence and did not seek legal representation. All three accused pleaded guilty to the charges. The State requested that the matter be finalised in terms of Section 112(1)(a) as the value of the stolen items was within the limits of section 112(a) of the Act.

4. Section 298 of the Criminal Procedure Act permits the sentencing court to amend its sentence when a wrong sentence is passed by mistake "before or immediately after it was recorded." It is a well­ known principle in our law that, once a court has duly pronounced a final judgement or order, it has itself no authority to correct, alter, or supplement it as it becomes functus officio. Its jurisdiction in the case has been fully and finally exercised; its authority over the subject matter has ceased.

5. Furthermore, the learned acting magistrate's service contract was terminated and he could not be recalled to correct the irregularity

in the sentence.

6. The learned magistrate after convicting the accused imposed a sentence as follows: "Each one of you is fined R500, wholly

suspended for a period of two years on condition that you do not find yourself guilty, make yourself guilty of theft or attempted theft during the period of suspension."

7. The Control Magistrate discovered during quality control of the files that the sentence was irregular and that it would serve no purpose to send the matter back to the trial court for sentencing as the magistrate's contract was not extended.

8. The control Magistrate is of the view that the sentence imposed is irregular as only a is fine imposed which is suspended without the necessary conditions of suspension that the accused should not be found guilty of theft committed during the period of suspension.

9. I am in full agreement with the magistrate that the sentencing court is functus officio for the fact that the acting magistrate's service has been terminated.

10. In the result the following order is granted.

1. The conviction stands.

2. The sentence is set aside and replaced with the following sentence.

3. Accused 1, 2 and 3 are each sentenced to a fine of R500/50 days imprisonment wholly suspended for two (2) years on condition that each accused is not found guilty of theft during the period of suspension.

_____

S. CHESIWE, AJ

I

CONCUR

J. J. MHLAMBI, J