Recent Case: Criminal procedure

• Published date: 06 July 2021
• Date: 06 July 2021
• DOI: https://doi.org/10.47348/SACJ/v34/i1a8
• Author: Reddi, M.
• Pages: 137-152
• Citation: (2021) 34 SACJ 137

Criminal Procedure

MANAGAY REDDI

University of KwaZulu-Natal

Automatic review

Although s 3 02(1)(a) of the Criminal Procedure Act 51 of 1977

(hereafter the CPA) makes provision under certain circ umstances

for an ‘automatic review’ at the close of a criminal trial, arguably,

the nature of the exercise is more of an appeal than rev iew. This

is because, unlike with regular review proceedings, in an automatic

review the reviewing judge is not restricted to an examination of only

irregularities but can also traverse all aspects t hat may be the subject

of an appeal (S v G 1990 (2) SA 22 (T) 26H; A Kruger Hiemstra’s

Criminal Proc edure (2 021) 30-15).

The automatic review procedure is signicant for several reasons.

However, the most critical is that it affords protection to the large

cohort of unrepresented accused who are daily sentenced in the

district magistrates’ courts to fairly severe sentences. The two main

factors that determine whether the automatic review provisions would

be invoked are: (i) the experience of the magistrate; and (ii) the nature

and extent of the sentence imposed. In all instances in which the

accused is legally represented during the tr ial, automatic review is

excluded (s 302(3)(a) of the CPA).

Under the peremptory provisions of s 302(1)(a)(i), if a sentence of

imprisonment is imposed on an un represented accused the matter

must go on automatic review if the period of incarceration exceeds

three months and was imposed by a magi strate of less than seven

years’ experience in the position. If the magi strate has more than seven

years’ experience then the automatic review provisions will apply in

instances of imprisonment in excess of six months.

The provisions of s 302(1)(a)(i) require th at the sentence imposed

must involve some form of detention or custodial connement. This

was conrmed by the court i n S v Josephs 2021 (1) SACR 450 (WCC)

which stated unequivocally that a sentence of two years’ correc tional

supervision under s 276(1)(h) of the CPA is a non-custodial sentence not

involving imprisonment. Therefore, correctional super vision imposed

under this sub-section falls outside the automatic review provisions of

s 3 02 (1)(a)(i).

ReCenT CASeS

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Howe ver, S v Joseph seems to indicate that some magistrates are

either (i) not aware that the automatic review provisions do not apply

to non-custodial sentences, or (ii) that correctional super vision under

s 276(1) (h) is not a custodial sentence. In Jose ph, an unrepresented

accused had been convicted on two counts of contravening s 37

of the General Law Amendment Act 62 of 1955 and one count of

housebreaking with intent to steal and thef t. He received a sentence

of two years’ correctional superv ision under s 276 of the CPA. The

magistrate then remit ted the matter to the high court on automatic

re vi ew.

The review court informed t he magistrate that the nature of the

sentence imposed did not seem to warrant an automatic review and

enquired why he had submitted the case for review ( Josep h infra

par a [3] ).

The magistrate’s response was that since the accused h ad been

legally unrepresented and had been sentenced to a two-year term of

correctional supervi sion which exceeded the limit delineated in s 302(1),

he was of the view that the matter had to be sent for review (ibid at

[4]–[5]). The high court concluded from the magistrate’s response that

he was unaware that a sentence of correctional supervision imposed

under s 276(1)(h) is not subject to automatic review.

Although the court could have retur ned the matter to the magistrate

with a note to the effect that his underst anding of the law was wrong,

it decided an educative response would be a better approach. It then

conducted an analysis of the relevant provisions of the CPA and the

Correctional Services Act 111 of 1998.

The court referred to s 1 of the CPA which denes ‘correctional

supervision’ as ‘a community-based sentence to which a person

is subject in accordance with Chapter V and VI of t he Correctional

Services Act, 1998, and the regulations m ade under that Act …’ (ibid

at [8]). The Correctional Services Act denes ‘correctional supervision’

to mean ‘compulsory work for a community organisation or other

compulsory work of value to the community, performed without

payment’ (ibid). In analysing the provisions of s 51(1)(a) of the

Correctional Services Act, the court concluded that a person sentenced

to correctional service under s 276(1)(h) of the CPA is someone who

is subject to ‘community corrections’ wit hin the meaning of that ter m

in the Correctional Ser vices Act (ibid). In terms of s 50(1)(a) of the

Correctional Services Act, an objective of ‘community corrections’ is

‘to afford sentenced offenders an opportunit y to serve their sentences

in a non-custodial manner’ (ibid).

In the court’s view, the statutory provisions are explicit that

correctional supervision is a non-custodial punishment i n line with

the legislature’s intention to clearly distinguish bet ween offenders

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