S v Collard

• Jurisdiction: South Africa
• Citation: 2007 (1) SACR 522 (W)

S v Collard
2007 (1) SACR 522 (W)

2007 (1) SACR p522

Citation	2007 (1) SACR 522 (W)
Case No	Case No 983/2005
Court	Witwatersrand Local Division
Judge	Jajbhay J and Moshidi J
Heard	March 10, 2006
Judgment	March 10, 2006

Flynote : Sleutelwoorde B

Review — Powers of Court — Correction of sentence — Trial court suspending sentence on condition accused make repayments to complainant, but neglecting to stipulate when repayment to commence or that repayments be made periodically — Complainant seeking review — Not conviction or C sentence per se that were sought to be reviewed, but merely terms and conditions of repayments — No reason not to review case in interests of complainant where no actual prejudice to accused — Latter not having his burden increased by being ordered to make monthly payments — Accused ordered to make equal monthly payments over stipulated period — Criminal Procedure Act 51 of 1977, s 304(4). D

Headnote : Kopnota

The accused had been found guilty in a magistrates' court on three counts of theft (in the aggregate of R137 763,27) and two counts of fraud (in a total amount of R18 000). The complainant in all the counts was the accused's employer. The sentences on all counts were wholly suspended on condition, E inter alia, that the accused repaid the amounts to the complainant in full on or before 3 August 2010, being five years after the date of sentence. There was no stipulation that the accused should make periodic payments, or commence payment at all before 3 F August 2010. Subsequent to the imposition of sentence, it was pointed out by the complainant that the lack of such a stipulation deprived him of any recourse to law before 3 August 2010, in the event of the sum not having been paid by that date. This, and the fact that it had been his intention to require the accused to make monthly payments to the complainant, prompted the magistrate to refer the matter to the High Court on special review in terms of s 304(4) of the Criminal Procedure 51 of 1977. G

Held, that the question for determination was whether a court of review might amend the conditions of suspension of a sentence in order to ameliorate the situation of a complainant, and whether it might do so without reference to the accused. In the present case it was not the convictions or the sentences per se that were aimed at; what was sought to be reviewed were the terms and conditions of the repayments the accused was required to make. The H accused would not have his burden increased by being ordered to make monthly payments. His liability would remain the same, and he would simply be required to take immediate steps towards reducing that liability. (Paragraphs [9] and [10] at 525d - 526b.)

Held, further, that while most review cases concerned the position of an accused, there was no reason not to review a case in the interests of a complainant I where there was no actual prejudice to the accused. It would be unfair, however, to order that the accused effect payment retrospectively. There had been unavoidable delays since the matter had been finalised and it would be just and equitable if the accused were ordered to make future payments from the date of the judgment. (Paragraphs [12] and [14] at 526c - h.) J

2007 (1) SACR p523

Cases cited

S v Grobler 1992 (1) SACR 184 (C): compared A

S v Kubheka 1999 (1) SACR 65 (W): dictum at 66f applied

S v Mahlangu 2000 (2) SACR 210 (T): referred to B

S v Morris 1992 (2) SACR 365 (C): compared

S v Van Wyk 2000 (1) SACR 590 (T): compared.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 304(4): see Juta's Statutes of South Africa 2005/6 vol 1 at 1-396. C

Case Information

Special review in terms of s 304(4) of the Criminal Procedure 51 of 1977. The facts and issues appear from the reasons for judgment. D

Judgment

Moshidi J:

[1] This matter was originally placed before me on ordinary automatic review in terms of s 303 of the Criminal Procedure Act 51 of 1977 (the Act). As the proceedings appeared to be in accordance with justice, I, at that stage, accordingly endorsed the certificate as such.

[2] However, the matter has now been placed before me on special E review in terms of s 304(4) of the Act which provides as follows:

'If in any criminal case in which a magistrate's court has imposed a sentence which is not subject to review in the ordinary course in terms of s 302 or in which a regional court has imposed any sentence, it is brought to the notice of the provincial or local division having jurisdiction or any judge thereof that the proceedings in which the sentence was imposed were not in accordance with F justice, such court or judge shall have the same powers in respect of such proceedings as if the record thereof had...