S v Velaphi (2012000329) [2013] ZAECGHC 3 (1 January 2013)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE-GRAHAMSTOWN)

Case No: CA&R

Review Case No: 2012000329

Date delivered: 2013

In the matter between:

THE STATE

vs

KHAYA VELAPHI

______________

REVIEW JUDGMENT

MAKAULA J:

[1] This matter came before on special review. The accused was charged and pleaded guilty to two counts of stock theft. After pleading guilty the attorney representing the accused mitigated from the bar. The relevant portion of the mitigating factors highlighted by his attorney reads as follows:

“Both cows have been recovered by the owners. He is willing to repay the buyer of the cows. May court exercise mercy on him when imposing a sentence. I pray for a suspended sentence to be imposed on him. That is all.” (sic) (My underlining)

[2] In response, the public prosecutor had the following to say in response thereof:

“I recommend that a sentence of imprisonment that may be suspended. Both complainants have recovered the cows and it’s the buyer who has suffered a loss amounting to R9 000.00. I apply that court makes an order that he pays back the buyer. That is all.” (sic) (My underlining)

[3] The record reads thus thereafter:

“Postea: Accused is ordered in terms of S 300 CPA to reimburse the buyer Mr Frita a sum of R9 200.00.

Defence + Mr Frita agree that accused will pay a sum of R4 000.00 in November and a sum of R5 200.00 by the end of March 2013.

Accused to pay and compl to confirm to pp.” (sic) (Emphasis added)

[4] The accused was then sentenced on each count to ‘undergo 9 months imprisonment wholly suspended for five years on condition that Accused is not convicted of stock theft committed during the period of suspension.’

[5] The covering minute reads as follows:

“Matter is remitted for a special review at the instance of the Senior Magistrate Mr. Stander.

The accused has been charges on two counts of theft of stock and has been convicted in both counts. The defence attorney in his address on mitigation of sentence has indicated to court that the accused is willing to reimburse the buyer of the stolen cows.

The prosecutor the formally applied for Section 300 CPA to be applied.

I then made it on order of court that the accused pays the amount he has offered to pay on two installments as he has offered to court.

Apparently I made an error in applying Section 300 CPA and I pray for certification of the error made.” (sic)

[6] As it appears from the above, the magistrate did not specify which error he/she committed and what certification is sought. I therefore shall comment on the basis of what I see and suspect to have been wrongly done.

[7] Section 300 (1) of the CPA 51 of 1977 reads as follows:

“300. Court may award compensation where offence causes damage to or loss of property

Where a person is convicted by a superior court, a regional court or a magistrate’s court of an offence which has caused damage to or loss of property (including money) belonging to some other person, the court in question may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss: Provided that –

A regional court or a magistrate’s court shall not make any such award if the compensation applied for exceeds the amount determined from time to time by the Minister by notice in the Gazette in respect of the respective counts.

[Sub-s (1)(a) substituted by s 14 of Act 5 of 1991.]

. . .

[Para (b) deleted by s 12 of Act 26 of 1987.]” (Emphasis added)

[8] It is worth noting that presently a magistrate may make an award of up to R100 000.00.

[9] Gleaning from the section itself, it is apparent that an application for compensation has to be made by the public prosecutor immediately after the conviction.1 In the instant matter the public prosecutor did not make that application.

[10] An application for compensation in terms of Section 300 (1) of the Act should be launched on instructions from the person who has been injured or prejudiced as a result of the offence and nobody else.2 In this matter, the public prosecutor did not indicate to the court that he had been instructed by the complainants to bring an

application in terms of Section 300 (1) of the Act. Even if he had so indicated, I am certain that such an application would not have succeeded for the reason that the complainants did not suffer any injury or damage or any loss for that matter as contemplated in Section 300 (1) of the Act because their cows were returned to them. Assuming that the order made by the magistrate was correct, which is not the case, it would still be impugned because the loss in monetary terms is R9 000.00 and not R9 200.00 as reflected by the order.

[11] A compensation order can only be made when it has been proven that loss or damage was caused as a direct result of the commission of the offence of which the accused was convicted.3

[12] The order herein authorises the accused to compensate a third party who bought the cows apparently from the accused. For what it is worth, it is further not clear from the record whether the public prosecutor was authorised by the third party to make the application for compensation.

[13] It would seem to me, on the face of it, that the relevant section which should have been used in this instance is Section 301 of the Act which deals with ‘compensation to innocent purchaser of property unlawfully obtained.’4

[14] I do not have problems with the sentence as it stands. However, the order made in terms of Section 300 (1) of the Act, has to be set aside for the reasons stated.

Consequently, I make the following order:

The award of compensation made by the magistrate is set aside;

The proceedings are otherwise confirmed.

_____

M MAKAULA

JUDGE OF THE HIGH COURT

I agree:

______

D VAN ZYL

1 S v Tlame 1982 (4) SA 319 (BSC)

2 S v Tlame (supra)

3 Du Toit: Commentary on the CPA 29-2 and the authorities cited therein

4 Section 301 of the Criminal Procedure Act 51 of 1977; See also: Rex v Monaki 1947 (3) SA 184 (E) at 186