S v Mzingeli and Anothers v Renqe and Others

• Jurisdiction: South Africa
• Court: Transkei High Court
• Judge: White J
• Judgment Date: 26 July 1991
• Citation: 1992 (1) SACR 615 (Tk)
• Hearing Date: 26 July 1991
• Counsel: J Botha for the State N B Locke (with him S Miller) for the accused

White J:

When these cases came before me on automatic review I was of the J opinion that the sentences imposed were grossly inadequate and not in

White J

A accordance with justice. I therefore ordered that the cases be referred to this Court and that the following legal questions be argued before it:

(a)

Can a sentence be increased on automatic review?

(b)

If not, is it desirable that the Criminal Procedure Act, 1983, be amended to make this possible?

(c)

If (b) is answered in the affirmative, how should the Criminal B Procedure Act be amended to cater for the increase of sentence on automatic review?

Mr Botha for the State and Mr Locke, assisted by Mr Miller, for the accused, have submitted extensive heads of argument and addressed us at length on the issues raised. It is obvious that they have all done considerable research in the matter and we wish to thank them for their efforts and helpful submissions.

C In the first case Lindela Mzingeli and his co-accused were convicted of robbery and assault. They broke into a hut and forcibly removed goods to the value of R1 153,88. Whilst they were leaving the hut the second complainant attempted to stop them, whereupon they stabbed him twice, once on his wrist and once on his finger. The accused were sentenced on the conviction for robbery to R400 or 100 days' imprisonment, and to R100 or D 25 days' imprisonment for the assault.

In the second case Thandelakhe and three other accused were convicted of robbery and assault with intent to do grievous bodily harm. The complainant, an old man from Lesotho, and his companion came to Transkei to buy donkeys. The accused took them into the veld on the pretext of showing them donkeys. There they first severely assaulted the complainant E and thereafter robbed him of R600. The accused were sentenced to six months' imprisonment, both counts treated as one for sentence.

If, after considering a case on automatic review, a Judge is not satisfied that the proceedings are in accordance with justice, he shall obtain the presiding magistrate's reasons and then refer the case to the reviewing Court, which may deal with it in terms of s 310(2)(c). This section provides as follows:

F '310(2)(c) Such court, whether or not it has heard evidence, may, subject to the provisions of s 318 -

(i)

confirm, alter or quash the conviction, and in the event of the conviction being quashed where the accused was convicted on one of two or more alternative charges, convict the accused on the other alternative charge or on one or other of the alternative charges;

(ii)

G confirm, reduce, alter or set aside the sentence or any order of the magistrate's court;

(iii)

set aside or correct the proceedings of the magistrate's court;

(iv)

generally give such judgment or impose such sentence or make such order as the magistrate's court ought to have given, imposed or made on any matter which was before it at the trial of the case in question; or

(v)

H remit the case to the magistrate's court with instructions to deal with any matter in such manner as the Supreme Court may think fit; and

(vi)

make any such order in regard to the suspension of the execution of any sentence against the person convicted or the admission of such person to bail, or, generally, in regard to any matter or thing connected with such person or the proceedings in regard to I such person as to the Court seems likely to promote the ends of justice.'

Section 318 provides that when a conviction and sentence, which follow a plea of guilty, are set aside, the case shall be remitted to the Court a quo.

The Courts have held that, as the law now stands, a competent but inadequate sentence cannot be increased on automatic review - R v Froneman and Froneman 1941 TPD 74 at 79; R v Fletcher 1941 EDL 255 at 258; S v Haasbroek; S v November 1969 (1) SA 356 (E) at 359A; S v Hougaard 1972 J (3) SA

White J

A 748 (A) at 756F; S v Msindo 1980 (4) SA 263 (B) at 265C. The primary reason for placing this construction on the relevant empowering provisions is that the power to increase sentences is not, as in the case of Courts of appeal, specifically afforded Courts of automatic review. Further reasons are the resultant lack of certainty and finality which would flow from the Courts having such powers, and because automatic review is not, B as in the case of an appeal, at the instance of the accused.

The first question posed must therefore be answered in the...