Sithole v S (A996/2011) [2012] ZAGPPHC 227 (4 October 2012)
- Citation
- [2012] ZAGPPHC 227
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- A. M.L Phatudi, D.S. Molele
- Case number
- A996/2011
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- A. M.L Phatudi, D.S. Molele
- Case number
- A996/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal court found that the trial court misdirected itself by not ordering the sentence for forgery to run concurrently with the sentence for fraud. Both offences arose from the same facts and circumstances, and the failure to order concurrent sentences resulted in an unduly harsh effective sentence. The concession by the state was accepted, and the appeal court exercised its discretion to set aside the original sentence and replace it with an order that the sentences run concurrently, resulting in an effective sentence of four years' imprisonment.
Court disposition
Appeal upheld; sentence set aside and replaced with concurrent sentences.
Orders
- The appeal is upheld.
- The sentence imposed by the trial court is set aside and replaced as follows: Count 1 - Accused is sentenced to 4 years imprisonment; Count 2 - Accused is sentenced to 3 years imprisonment, ordered to run concurrently with the sentence on count 1.
- Effective sentence is 4 years imprisonment.
02
Material facts
Parties
Elias Philemon Sithole
Appellant Counsel: M. JungbluthThe State
Respondent Counsel: N. R. MotaungAmounts and remedies
- Sentence for Fraud: ZAR 4
- Sentence for Forgery: ZAR 3
03
Procedural history
Posture
Leave to Appeal / Appeal Against Sentence on Forgery
04
Questions and positions
Legal issues
- 01
Whether the trial court misdirected itself in ordering the sentence for forgery to run consecutively rather than concurrently with the sentence for fraud.
- 02
Whether the appeal court should interfere with the sentence imposed by the trial court.
Party arguments
- Applicant
- The appellant argued that the trial court erred by not ordering the sentence for forgery to run concurrently with the sentence for fraud, resulting in an unduly harsh effective sentence. The appellant relied on section 280(2) of the Criminal Procedure Act 51 of 1977, which allows for sentences to run concurrently, and submitted that the offences arose from the same set of facts.
- Respondent
- The respondent, represented by the state, conceded that the trial court ought to have ordered the sentence for forgery to run concurrently with that for fraud. The state agreed that section 280(2) of the Criminal Procedure Act 51 of 1977 permits the sentencing court to order sentences to run concurrently and acknowledged the misdirection by the trial court.
05
Court’s reasoning
Legal principles
- 01
S v Rabie 1975 (4) SA 855 (A)
Sentencing is primarily within the discretion of the trial court, but an appeal court may interfere if there is a misdirection.
- 02
Criminal Procedure Act 51 of 1977, section 280(2)
Section 280(2) of the Criminal Procedure Act 51 of 1977 permits the sentencing court to order sentences to run concurrently.
06
Ratio, limits and disposition
Ratio decidendi
The appeal court found that the trial court misdirected itself by not ordering the sentence for forgery to run concurrently with the sentence for fraud. Both offences arose from the same facts and circumstances, and the failure to order concurrent sentences resulted in an unduly harsh effective sentence. The concession by the state was accepted, and the appeal court exercised its discretion to set aside the original sentence and replace it with an order that the sentences run concurrently, resulting in an effective sentence of four years' imprisonment.
Obiter and limits
- It is trite that sentencing remains pre-eminently within the discretion of the sentencing court.
- The appeal court will only interfere with sentence if there is a misdirection on the part of the trial court.
Court disposition
Appeal upheld; sentence set aside and replaced with concurrent sentences.
- The appeal is upheld.
- The sentence imposed by the trial court is set aside and replaced as follows: Count 1 - Accused is sentenced to 4 years imprisonment; Count 2 - Accused is sentenced to 3 years imprisonment, ordered to run concurrently with the sentence on count 1.
- Effective sentence is 4 years imprisonment.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
Case No: A996/2011
Date heard: 04 October 2012
Date of judgment: 04 October 2012
In the matter between:
ELIAS PHILEMON SITHOLE.........................................Appellant
and
THE STATE......................................................................Respondent
JUDGMENT
PHATUDI J:
[1] The appellant is convicted on one count of fraud and one of forgery in Amersfoort Regional Court.
[2] The appellant was sentenced to 4(four) years imprisonment on fraud count and 3 (three) years imprisonment on forgery.
[3] Leave to appeal is granted only against sentence on forgery.
[4] It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. It is further trite that the
appeal court can only interfere if misdirection on the part of the trial can be found.
[5] The state conceded that the trial court ought to have order the sentence on forgery to run concurrently with that of fraud. The state refers me to section 280 (2) of Criminal Procedure Act 51 of 1977 that permits the sentencing court to order various sentence s which have been imposed to run concurrently.
[6] On perusal of the record and having heard submissions made, I am of the view that the trial court did misdirected itself by not letting the sentence on count 2 to run concurrently with that on count 1.
I, in the result, would make the following order:
1. The appeal is upheld.
2. The sentence imposed by trial court is set aside and replaced with the following
'Countl - Accused is sentenced to 4 (four) years imprisonment
Count 2 - Accused is sentenced to 3 years imprisonment. The sentence in count 2 is ordered to run concurrently with the sentence on count 1. Effective sentence is 4 (four) years imprisonment
A. M.L PhatudiJudge of the High Court
I agree.
D.S. Molele
Acting Judge of the High Court
On Behalf of the Appellant: M. Jungbluth
Botha & Van Dyk Inc
30 De Clerq Street
Ermelo
Attorney: Mr. M Jungbluth
On Behalf of the Respondent: Director of Public Prosecutions
Church Square
Adv. N. R. Motaung
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