S v Kok

• Jurisdiction: South Africa
• Judgment Date: 02 July 2014
• Citation: 2015 (2) SACR 637 (WCC)

S v Kok
2015 (2) SACR 637 (WCC)

2015 (2) SACR p637

Citation	2015 (2) SACR 637 (WCC)
Case No	WRC 85/2009
Court	Western Cape Division, Cape Town
Judge	Henney J and Le Grange J
Heard	July 2, 2014
Judgment	July 2, 2014
Counsel	Information not supplied

Flynote : Sleutelwoorde

Sentence — Suspension of — Conditions of suspension — On condition B accused repay large amount to state — Magistrate giving accused grace of one year in which to pay, in erroneous belief that debts to state had to be repaid within one year — Requirement unduly onerous — Matter remitted to court for imposition of sentence afresh. C

Headnote : Kopnota

The accused was convicted in a regional magistrates' court on a charge of having stolen in excess of R98 000 from the state and was sentenced to a term of imprisonment that was suspended on condition that he repay the amount within a period of one year. He failed to pay as stipulated and he was then arrested and started serving his sentence. He applied for leave to appeal and D contended that, in imposing sentence, the magistrate had erroneously taken the view that, in terms of the Public Finance Management Act 1 of 1999, it was required that all debts to the state had to be repaid within 12 months, and accordingly made this stipulation. The matter came before the court by way of special review.

Held, that, as it appeared that there was no such legal requirement as referred to E by the magistrate, the magistrate had clearly misdirected himself by relying on such a provision to limit the period of repayment of the amount owed by the accused. As a result of this, the condition of suspension, that he pay off the amount owed to the state in one year, was unduly onerous and it was not reasonably possible for the accused to comply with this condition of suspension. As a result of this the sentence imposed, as well as the F subsequent putting into operation of the sentence, fell to be set aside. (Paragraphs [16] – [17] at 642b – c.) The matter was remitted to the regional court for sentence to be considered afresh before another regional magistrate in terms of the provisions of s 275 of the Criminal Procedure Act 51 of 1977.

Cases cited

S v Grobler 1992 (1) SACR 184 (C): applied G

S v Malapane [2011] JOL 27840 (GSJ): referred to

S v Masita 2005 (1) SACR 272 (C): compared H

S v Mavundla 1980 (4) SA 187 (T): compared

S v Mei 1982 (1) SA 299 (O): dicta at 299 discussed

S v Mpofu 1985 (4) SA 322 (ZH): referred to

Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A): referred to.

Legislation cited

Statutes I

The Criminal Procedure Act 51 of 1977, s 275: see Juta's Statutes of South Africa 2014/15 vol 1 at 2-402

The Public Finance Management Act 1 of 1999: see Juta's Statutes of South Africa 2014/15 vol 3 at 1-547.

Case Information

Review. J

2015 (2) SACR p638

Order A

(1)

That the conviction on the charge of theft of R98 663,45 follows upon the application of s 270 of the Criminal Procedure Act 51 of 1977, and it is so confirmed.

(2)

that the matter is remitted back to the regional court for sentence to B the provisions of s 275 of the Act.

Judgment

Henney J (Le Grange J concurring):

Background C

[1] This is a special review in terms of the provisions of s 304(4) of the Criminal Procedure Act 51 of 1977 (the Act). This matter was referred to the High Court directly by the accused who was incarcerated in the Worcester Correctional Services Centre. He was convicted on a charge of theft of R98 668,98 [1] on 20 June 2012 D and was sentenced on 8 August 2012 to a period of five years' imprisonment that was suspended for a period of five years on condition that he was not convicted of an offence of theft or any offence involving an element of dishonesty during the period of suspension. The accused was furthermore ordered to pay the complainant the entire amount of R98 682,98 by 31 July 2013.

E [2] On 1 August 2013 the accused was arrested and brought before the regional court in Worcester due to his failure to adhere to the condition of suspension that he pay the amount of R98 682,98 by 31 July 2013. The state brought an application in terms of the provisions of s 297(9)(a) of the Act for the suspended sentence to be put into operation. This resulted in the court putting the suspended sentence into F operation, and the accused was sentenced to undergo a term of imprisonment of five years.

[3] The accused thereafter on 27 November 2013 applied for leave to appeal against the original sentence imposed to the court a quo, such leave being refused. On petition to this court leave was granted by G Goliath J and Schippers J on 25 February 2014. Before the matter was set down for the appeal to be heard, the accused, in a letter dated 23 May 2014 to the registrar, requested that this matter be placed for consideration on review on 29 May 2014.

[4] Attached to his review documents he filed an affidavit in which he H stated that during the sentencing proceedings in the regional court, after he pleaded guilty to theft, his attorney tendered a document on his behalf that he repay the amount stolen of R98 682,98 in instalments. According to the appellant, the regional magistrate interrupted his attorney and informed him that, in terms of the Public Finance Management Act 1 of I 1999 (PFMA), money due to the state must be paid within a year. This prompted the magistrate to impose, as a condition of his suspended sentence, that he repay this money within a year. The accused was unable to pay this amount within a year because of financial difficulties,

2015 (2) SACR p639

Henney J (Le Grange J concurring)

and this resulted in him being in breach of the conditions of suspension. A As a result of his failure to pay this amount the suspended sentence was imposed.

[5] After a perusal of the record, the allegation made by the accused proved to be correct. As a result of this, an order was issued on 13 June 2014 B by me that the accused be released forthwith, unless there were other reasons for his further incarceration. Upon a further perusal of the record of the proceedings in the regional court, I am of the view that the conviction of the accused by the regional magistrate on the charge of theft needs to be reconsidered.

The proceedings in the court a quo prior to conviction C

[6] The accused was charged in the regional court in Worcester on one count of fraud, in that during March 2008 in Adderley Street, Worcester, he unlawfully and falsely gave out to the Government Employees Pension Fund...