S v Tsolo (294/2011) [2011] ZAFSHC 142 (1 September 2011)
- Citation
- [2011] ZAFSHC 142
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- M.A. Mathebula
- Case number
- 294/2011
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- M.A. Mathebula
- Case number
- 294/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The magistrate imposed an incomplete sentence by failing to specify all necessary conditions and terms. Precedent establishes that such a sentence is irregular and must be set aside. The conviction itself is sound and is therefore confirmed. The proper procedure is to remit the matter to the magistrate for the imposition of a competent sentence.
Court disposition
Conviction confirmed; sentence set aside; matter remitted to magistrate for competent sentence.
Orders
- The conviction is confirmed.
- The sentence is set aside.
- The matter is remitted to the magistrate to impose a competent sentence.
02
Material facts
Parties
The State
ApplicantMoeketsi Tsolo
RespondentAmounts and remedies
- Fine Imposed (set Aside): ZAR 4,000
- Suspended Imprisonment (months): 12
- Suspension Period (years): 5
03
Procedural history
Posture
Criminal Review / Special Review
04
Questions and positions
Legal issues
- 01
Whether the sentence imposed by the magistrate was competent and complete.
- 02
Whether the conviction should be confirmed despite the sentencing error.
- 03
What is the appropriate procedure when an incomplete sentence is imposed.
Party arguments
- Applicant
- The State did not advance specific arguments in the review; the matter was referred by the magistrate due to a sentencing error.
- Respondent
- The accused did not present arguments in the review proceedings; the review was initiated by the magistrate's referral.
05
Court’s reasoning
Legal principles
- 01
S v Mosolotsane 1993 (1) SACR 502 (O) at 503e–h
A sentence must be complete and competent; an incomplete sentence is irregular and must be set aside.
- 02
Section 304 of the Criminal Procedure Act 51 of 1977
Upon finding an incomplete sentence, the conviction may be confirmed but the matter must be remitted for proper sentencing.
06
Ratio, limits and disposition
Ratio decidendi
The magistrate imposed an incomplete sentence by failing to specify all necessary conditions and terms. Precedent establishes that such a sentence is irregular and must be set aside. The conviction itself is sound and is therefore confirmed. The proper procedure is to remit the matter to the magistrate for the imposition of a competent sentence.
Obiter and limits
- In cases of incomplete sentencing, it is preferable to remit the matter to the trial magistrate for correction rather than to substitute a sentence on review.
- The declaration of unfitness to possess a firearm and forfeiture of dagga are ancillary orders that remain unaffected by the setting aside of the sentence.
Court disposition
Conviction confirmed; sentence set aside; matter remitted to magistrate for competent sentence.
- The conviction is confirmed.
- The sentence is set aside.
- The matter is remitted to the magistrate to impose a competent sentence.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 294/2011
In the review between:
THE
STATE
and
MOEKETSI
TSOLO
JUDGEMENT BY: MATHEBULA, AJ
DELIVERED ON: 1 SEPTEMBER 2011
[1] The matter was sent on special review by the magistrate, Bloemfontein. The accused was convicted of contravening Section 5(B) of Act 140 of 1992 (Dealing in Dagga). The following sentence was imposed:-
“R4000.00 (four thousands rand or 12(twelve) months imprisonment which is wholly suspended for period of 5(five) years on condition accused is not again found guilty of contravening SECTION 5(B) ACT 140/92 committed during period of suspension. In terms of SECTION 103(1) ACT 60/2000 accused is declared unfit to possess firearm. Dagga declared forfeited to the State.”
[2] The magistrate correctly points out that he imposed and incomplete sentence. See S v MOSOLOTSANE 1993 (1) SACR 502 (O) at 503e – h. The sentence ought to be set aside.
[3] Usually in matters of this nature, the matter must be referred to the magistrate for the imposition of a competent sentence.
[4] I make the following order:-
The conviction is confirmed.
The sentence is set aside and the matter is remitted to the magistrate so that he could impose a competent sentence.
_______
M.A. MATHEBULA, AJ
MAM/sp
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