Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Citation: (2007) 20 SACJ 381
• Pages: 381-409
• Published date: 16 August 2019
• Author: Michael Cowling
• Date: 16 August 2019

Criminal procedure

MICHAEL COWLING

University of KwaZulu-Natal

Admission of guilt — reduction of  ne

In S v Engelbrecht2007 (1) SACR 130 (T) the accused was issued with a

notice in terms of s 56 of the Criminal Procedure Act 1977. This was to

the effect that it was alleged that he had exceeded the speed limit and

would either have to appear in court on a certain date or pay a stipu-

lated f‌i ne in terms of the admission of guilt procedure. The accused

opted to pay the f‌i ne but, at the same time, made representations to

the prosecutor for a reduction thereof. The prosecutor duly reduced

the f‌i ne on the basis of the accused’s representations.

Since the magistrate had not yet at that stage conf‌i rmed the convic-

tion, he could do so on the basis of the reduced amount. This meant

that the accused was entitled to a refund and the court on special

review ordered this to be done. It appears from the judgment that this

refund would not have been possible if the magistrate had already

conf‌i rmed the conviction.

Appeal

Appeal — against sentence — reduction on appeal

In S v Oosthuizen2007 (1) SACR 321 (SCA) the accused was convicted

of assault with intent to do grievous bodily harm and sentenced to

36 months’ imprisonment — 12 months of which were suspended for

a period of three years on condition that he was not convicted of a

Criminal procedure 381

(2007) 20 SACJ 381

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crime involving violence committed during the period of suspension.

The offence took the form of the accused administering a prolonged

beating to one of his young employees who was suspected of theft.

On appeal the accused contended that this custodial sentence was

too severe. In particular, it was argued on the accused’s behalf that the

presiding magistrate should have imposed a sentence of correctional

supervision in terms of s 276(1)(i) of the Criminal Procedure Act which

provides for early release from a custodial sentence whereupon the

accused will be placed under correctional supervision.

The reason why the magistrate rejected correctional supervision as

an appropriate sentence was because he was of the opinion that the

assault was vicious and had endured for a long time (approximately

one hour). He also considered the threat to assault the complainant

until he revealed where the knife was hidden (the knife being the

object allegedly stolen by the complainant) as torture. Finally the mag-

istrate also took into account the accused’s two previous convictions

of housebreaking with intention to assault and assault as indicative of

the fact that he had a ‘preponderance of violence’. On appeal to the

Supreme Court of Appeal the latter interpreted this to mean that the

accused ‘was prone to violence’ (at 324n2).

The court on appeal considered this to be a ‘material misdirection’

(324h) because the two offences were interrelated (that is, they had

occurred at the same time) and had occurred nine years previously.

So, although it was held that the magistrate had rightly discounted a

non-custodial sentence, the court on appeal was of the opinion that the

magistrate had ‘erred in not considering the kind of custodial sentence

provided for in terms of s 276(1)(i) of the Act’ (at 325b). The major

advantage of this provision is that it caters for cases where a custodial

sentence is appropriate but the nature of the offence suggests that an

extended period of incarceration would be inappropriate.

In the present case the court was of the opinion that, although a cus-

todial sentence was appropriate as a deterrent the extended period of

incarceration was considered to be ‘unwarranted’ and it could have ‘the

potential to break the accused’ (at 325e). This was because the accused

was a farmer and had a wife and three young children to support. As

a result the sentence was accordingly reduced to 18 months imprison-

ment in terms of s 276(1)(i) of the Criminal Procedure Act.

Appeal — delay in  nalisation — denial of justice

In S v Heslop2007 (1) SACR 461 (SCA) the accused had been convicted

on three counts of culpable homicide and sentenced to an effective

six years’ imprisonment. This had occurred on 5 November 1996. The

accused thereafter was granted leave to appeal to the Supreme Court

382 SACJ. (2007) 3

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