Kader v Assistant Magistrate, Cape Town, and Another

• Jurisdiction: South Africa
• Judge: De Villiers JP and Steyn J
• Judgment Date: 07 June 1954
• Citation: 1954 (3) SA 648 (C)
• Hearing Date: 24 May 1954
• Court: Cape Provincial Division

De Villiers, J.P.:

In this matter, review proceedings were launched by way of summons on the 10th March, 1954, service being effected on the B Attorney-General on the 17th March, and on the magistrate concerned on the 18th March. It sets out that the applicant was convicted on the 26th February, 1953, on two counts of theft. That this is an erroneous description is made clear in the review summons itself, for admittedly there were two separate cases - Regina v John Sedgwick and Abdoel C Kader (No. J399/53) and Regina v Harold Leeman and Abdoel Kader (No. J400/53).

The summons indicates that the following sentences were passed on the applicant: (a) with regard to case 399/53, to receive a whipping of eight cuts with a light cane, and (b) with regard to case 400/53, to a fine of £20 or six weeks' imprisonment with compulsory labour, and in D addition, six weeks' imprisonment with compulsory labour, this period being suspended for two years on condition that he was not convicted of any offence involving dishonesty during such period. The summons calls on the magistrate and the Attorney-General to show cause why these proceedings should not be reviewed, and the sentences set aside or corrected on the following grounds:

(a) That is was irregular and incompetent in terms of sec. 353 of Act 31 E of 1917, that the said Abdoel Kader, having been sentenced to receive a whipping in terms of sec. 353, should, at the same time, be sentenced to pay a fine and to a term of imprisonment:

(b) That in respect of both the above cases, the conviction and sentence were irregular inasmuch as there is no evidence aliunde that the thefts had been committed.

F The second ground urged no longer falls to be considered, as Mr. Snitcher, who appeared for the applicant, abandoned it.

In support of the summons, the applicant filed an affidavit, which indicated that he was the accused in the two criminal cases referred to in the summons, that in each of these two cases he was convicted on the G 24th February, 1953, and that on the 26th February both cases were called, and he was sentenced at the same time in respect of both charges of theft. The sentences are set out in this affidavit, the applicant furthermore alleging that he was, at the time of the sentences, nineteen years of age, and that he duly received the whipping and paid the fine. The records of the two cases are annexed to his affidavit. It is clear, therefore, that the review proceedings were launched almost thirteen H months after the date of the convictions, and that no explanation of this delay was put on record.

At the hearing on the 24th May, 1954, a further affidavit was filed by the applicant, to the effect that after his conviction both his father and his attorney died, the dates of death not being set out. In this

De Villiers JP

affidavit he said that he did not recognise the significance of the sentences passed, and that in consequence he was in danger of deportation - proceedings to that effect having been taken after the date of the convictions. He adds that it is in the interests of justice that 'the above cases be regularised in terms of the review summons, and A that any delay in taking the review proceedings be condoned'.

In his reply to the summons, the magistrate referred to the evidence in both cases. The applicant had pleaded guilty in each case and had been represented by an attorney. He admitted that the exhibits before the B court in each case were found in his possession. In each case the exhibits had been identified by witnesses as belonging to the complainants - in the one case Messrs. Harris & Co., and in the other, the Opera Gift House, respectively. Since the second ground of review has been abandoned, it is unnecessary to deal with the facts of either case. In his reasons on the point of law as to the effect of sec. 353, the magistrate makes it clear that he took the second case 400/53, C first, and passed sentence. This is what he says:

'My initial approach to this case was to treat the accused as an adult in view of his age of 19 years, hence sentence passed in case J400/53 of £20 or 6 weeks' imprisonment with compulsory labour and 6 weeks' imprisonment with compulsory labour; the 6 weeks' imprisonment with compulsory labour being suspended for 2 years on condition that he is not convicted of any offence involving dishonesty during this period.'

D Thereafter he indicates how he approached the sentence in the case J399/53:

'After having imposed this sentence I was confronted with the problem of imposing a proper additional sentence in case J399/53. I was not prepared merely to caution and discharge the accused in this case and I realised that if I imposed an additional fine, the accused might not be able to pay the total fines imposed, nor would there have been much E point in imposing an additional suspended sentence, in view of the sentence suspended for 2 years in case J400/53.

I decided, after having been addressed by accused's attorney, Mr. Lazarus, on the question of sentence, to invoke the provision of sec. 353 which permits the court to treat a person between the ages of 19 and 21 years as a juvenile in so far as the imposition of a whipping is concerned. As far as I can remember, Mr. Lazarus raised no objections to the sentences.

Although the accused states in his affidavit that he was 'sentenced...