S v Bashford

• Jurisdiction: South Africa
• Judge: TP Mudau AJ
• Judgment Date: 13 March 2015
• Docket Number: CC54/94
• Court: Gauteng Division, Pretoria
• Hearing Date: 12 March 2015
• Citation: 2015 JDR 0606 (GP)

JUDGMENT ON SENTENCE

Mudau AJ:

[1]

The accused in this matter initially appeared with a co-accused (Norris) on a number of charges that include, murder as well as robbery with aggravating circumstances. After a change of a not guilty plea to that of guilty, the accused was convicted on his plea by this court (Els J) on 13 March 1995 for murder as well as theft. The plea had been amplified by a statement and his confession regarding the crimes charged to a magistrate.

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Mudau AJ

[2]

Consequently, a separation of trial was ordered by the trial court between the two accused. After relevant evidence was presented, the accused was in terms of s 286A of the Criminal Procedure Act 51 of 1977 ("the Act"), declared a dangerous criminal. In this instance, the trial court had found that the accused showed anti-social personality traits and that, he represents a danger to the physical or mental well-being of other persons. Further that, there was a need to protect the community against him. The s 286A declaration had been preceded by an enquiry followed by a unanimous finding by a team of psychiatrists in support of the declaration. Following upon this declaration, the accused was in terms of s286B of the Act sentenced to undergo imprisonment for an indefinite period subject to a direction that he brought before court on 12 March 2015.

[3]

S286B, in so far as relevant, read as follows:

"286B. Imprisonment for indefinite period. –

(1)

The court which declares a person a dangerous criminal shall –

(a)

sentence such person to undergo imprisonment for an indefinite period; and

(b)

direct that such person be brought before the court on the expiration of a period determined by it, which shall not exceed the jurisdiction of the court.

(2)

A person sentenced under subsection (1) to undergo imprisonment for an indefinite period shall, notwithstanding the provisions of subsection (1)(b) but subject to the provisions of subsection (3), within seven days after the expiration of the period contemplated in

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subsection (1)(b) be brought before the court which sentenced him in order to enable such court to reconsider the said sentence: Provided that in the absence of the judicial officer who sentenced the person any other judicial officer of that court may, after consideration of the evidence recorded and in the presence of the person, make such order as the judicial officer who is absent could lawfully have made in the proceedings in question if he had not been absent.

(3)(a)-(c)

...............

(4)

(a)

Whenever a court reconsiders a sentence in terms of this section, it shall have the same powers as it would have had if it were considering sentence after conviction of a person and the procedure adopted at such proceedings shall apply mutatis mutandis during such reconsideration: Provided that the court shall make no finding before it has considered a report of a parole board as contemplated in section 5C of the Correctional Services Act, 1959 (Act No. 8 of 1959).

(b)

After a court has considered a sentence in terms of this section, it may –

(i)

confirm the sentence of imprisonment for an indefinite period, in which case the court shall direct that such person be brought before the court on the expiration of a further period determined by it, which shall not exceed the jurisdiction of the court;

(ii)

convert the sentence into correctional supervision on the conditions it deems fit; or

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Mudau AJ

(iii)

release the person unconditionally or on such conditions as it deems fit.

(5)-(7)

....................................................."

[4]

This court therefore has three options In terms of s 286B (4) when a prisoner is brought for a reconsideration of the sentence: it may confirm the sentence for an indefinite period, in which case it must fix a period upon the expiration of which the prisoner must again be brought to court, it may convert the sentence into correctional supervision or it may release the prisoner unconditionally or on such conditions as it deems fit. In essence, the law provides for the confirmation, conversion or termination of the sentence but not for a new sentence to be imposed.

[5]

The Correctional Services Act No 8 of 1959 has since been repealed and replaced by The Correctional Services Act 111 of 1998. Therefore, reference in s 286B (4) (a) to s 5C of the Correctional Services Act 8 of 1959, can safely be construed as a reference to ss74 and 75 (1) (b) of the Correctional Services Act 111 of 1998 (Moetjie v The State and another 2009 (1) SACR 95 (T) at [10]).

[6]

In this matter, the trial...