S v Mashudu

• Jurisdiction: South Africa
• Judge: AE Moolla AJ
• Judgment Date: 31 March 1999
• Docket Number: 4/99
• Court: Venda High Court
• Hearing Date: 31 March 1999
• Citation: 1999 JDR 0503 (V)

AE Moolla AJ :

The accused in this matter is MUNYAI MASHUDU whose stated age in the charge sheet is given as 20 years. He was charged with the offence of contravening section 36 of Act No 62 of 1955, the allegation against him being as follows:

"In that whereas the said accused was on 3 April 1997 and at Matsika location in the district of Thoboyandou found in possession of goods, to wit, six solars other than stock or produce as defined in Section 1 of the STOCK THEFT ACT NO 57 of 1959, in regard to which there was a reasonable suspicion that the said goods had been stolen;

Now therefore the accused is unable to give a satisfactory account of such possession, and is guilty of contravening Section 36 of Act 62 of 1955."

Pursuant to a plea of not guilty the accused was found guilty of the offence

1999 JDR 0503 p2

AE Moolla AJ

charged and sentenced to a term of imprisonment of ten months on the 10th of November 1998. The matter now came before me by way of automatic review.

The conviction in question appears to be in order and accords with Justice. However, it is the sentence imposed by the Learned Magistrate which forms the subject matter of this review judgment.

The Learned Magistrate misdirected himself in failing to draw a distinction between his role as a judicial officer during the course of the trial in respect of the issue of criminal liability and his role during the sentencing phase, of the proceedings, the latter phase, being as important if not more important than the liability phase.

During the liability phase of the trial the Magistrate, correctly in my view, refrained from descending into the Judicial arena. However, during the sentencing proceedings the role of the Judicial Officer is a pro-active one, especially in the case of an unrepresented accused as was the dispensation in this case. This imposed on the Magistrate a positive obligation, where the accused did not place sufficient facts before him to make a cogent sustained and informed enquiry about all, the material and relevant facts which would have discharged his obligations to address the sentencing triad as set out in the seminal judgment of S v Zinn. It is clear from the record that he failed to conduct such an enquiry and passed sentence on the minutiae and bare averments of the accused. To this extent there has been a failure of justice warranting the intervention by this Court.

The approach which commends itself to me in these circumstances is dealt

1999...