R v Van Wyk; R v Klasi

• Jurisdiction: South Africa
• Judge: van Wyk J, Banks AJ and van Heerden AJ
• Judgment Date: 25 May 1961
• Citation: 1961 (3) SA 511 (C)
• Hearing Date: 27 March 1961
• Court: Cape Provincial Division

Banks, A.J.:

These two cases were submitted to this Court for review. The reviewing Judges referred them to the Court of appeal for argument.

G At the hearing Mr. Heyns appeared for the Crown, and at the request of the Court Mr. Cilliers appeared for van Wyk and Mr. W. Burger for Klasi. The Court is indebted to all three counsel for their helpful arguments.

H The accused van Wyk was charged before the additional magistrate of Caledon, sitting at Hermanus, with the crimes of housebreaking with intent to steal and theft. He pleaded guilty, and after evidence had been led proving the commission of the crimes charged, was convicted. After conviction the accused admitted a number of previous convictions which would have rendered the imposition of the indeterminate sentence obligatory if the accused had been convicted either by a Superior Court or the court of a regional division. The magistrate, however, sentenced the accused to imprisonment for corrective training.

Banks AJ

It appears that the reasons which actuated the magistrate not to set aside his verdict and convert the proceedings into a preparatory A examination were that the crimes were not, in his view, serious, as they involved merely the breaking into of an outside room and stealing wine worth approximately 7s., and the further fact that the accused's last conviction for an offence involving dishonesty was in 1952, when he was sentenced to nine months' imprisonment with hard labour.

The reviewing Judge referred the case to the Court of appeal for argument on the following questions:

(a)

B Whether the magistrate after conviction and proof of the accused's previous convictions should not, in terms of sec. 93 (2) of Act 32 of 1944, have come to the conclusion that a sentence in excess of his jurisdiction was required to be passed or alternatively was justified, and have set aside his C finding, and converted the proceedings into a preparatory examination, and

(b)

Whether the sentence passed by the magistrate was a competent sentence.

In regard to (a) I am satisfied from the reasons given by the magistrate that a sentence in excess of the magistrate's jurisdiction was not D merited, but the question remains whether a sentence in excess of the magistrate's jurisdiction was required to be passed, and whether for that reason the magistrate should have taken steps to convert the proceedings into a preparatory examination.

The decisions of our Courts on this point have not been harmonious. In E the Transvaal in R v Msane, 1960 (1) SA 354 (T), it was held that where an accused qualifies for a sentence of imprisonment for prevention of crime a magistrate is obliged to convert the proceedings into a preparatory examination. That decision was, however, later overruled by the Full Bench in R v Shuping, 1960 (2) SA 281 (T). In R v Ngubane, 1960 (2) SA 80, the Orange Free State Provincial Division F held that in the circumstances mentioned a magistrate nevertheless has a discretion either to convert the proceedings into a preparatory examination, or to sentence the accused summarily. Ngubane's case was later affirmed by a Full Bench of the Orange Free State Provincial Division in R v Letebele, 1960 (4) SA 663. Shuping's case was G followed on this point by the Eastern Districts Court in R v Bornman, 1960 (3) SA 878, but in R v Grey, 1960 (2) SA 238, the Natal Provincial Division, following the decision in R v Shange and Others (unreported) in that Division, held that a magistrate in such circumstances was obliged to convert the proceedings into a preparatory H examination. The only decision of this Division which has a bearing on the point under discussion is R v Julies, 1960 (1) P.H. H.24, which is consistent with the view that a magistrate has a discretion either to convert the proceedings into a preparatory examination or to sentence the accused summarily.

It is clear from the provisions of secs. 334 quat and 335 of Act 56 of 1955, as amended, that if an accused is convicted of an offence, and his previous convictions are such that they fall within either paras. (a), (b) or (c) of sub-sec. (2) of the relative section, a Superior Court or a court of a regional division is required, subject to the provisions of sub-sec.

Banks AJ

(3), to sentence the accused to imprisoment for prevention of crime or to the indeterminate sentence, as the case may be. It is equally clear that if an accused is convicted of an offence, and his previous convictions are such as to fall within paras. (a) or (b) of sub-sec. (2) A of sec. 334 ter, it is compulsory, subject to the provisions of sub-sec. (3), to sentence such accused to imprisonment for corrective training, whether the accused be convicted by a Superior Court or a court of a regional division, or a magistrate's court. The latter has no jurisdiction to impose the indeterminate sentence, or a sentence of imprisonment for prevention of crime, and the difficulty arises in cases B where accused who qualify (if convicted by a Superior or regional court) by reason of their previous convictions for one of these sentences, are convicted by a magistrate's court. It was argued that in such cases a magistrate is obliged to convert the proceedings into a preparatory examination in order that the accused may be brought before C a court which has the power to impose such a sentence. If it were not so, a magistrate's court would be vested with a discretion which is denied a Superior Court, or a court of a regional division. There was no ground, so it was argued, why such a discretion should vest in a magistrate's court and not in a Higher Court. In R v Williams, 1952 (4) SA 185, a Full Bench of this Division held, in referring to sec. D 344 (1) bis of Act 31 of 1917, as amended, that despite the fact that a Superior Court would have been obliged to sentence a particular accused to the...