S v Peter

• Jurisdiction: South Africa
• Judge: Galgut JA, van Winsen JA and Diemont JA
• Judgment Date: 27 February 1988
• Citation: 1989 (3) SA 649 (CkA)
• Hearing Date: 30 November 1988
• Court: Ciskei Appellate Division

Galgut JA:

The appellant, at the time of the commission of the offence, was a prosecutor in the magistrate's court. The State case was that I he demanded and received from an accused in his court the sum of R15. For reasons which will appear later there is no need to set out all the facts. Appellant at his trial pleaded not guilty. The magistrate having heard the evidence found him guilty of extortion and sentenced him to a fine of R200 or six months' imprisonment. Appellant then noted an J appeal to the General Division of this Court.

Galgut JA

A The Attorney-General filed an objection in limine. He asked that the appeal be struck off on the ground that appellant's heads of argument had not been filed timeously. In support of applicant's request for condonation of the late filing, his attorney explained that the delay was not due to any fault on the part of appellant. The objection was not seriously persisted in and the appeal was allowed to proceed. B

The first paragraph of the notice of appeal reads that the appeal is against the 'conviction and sentence'. It is apparent that the words 'and sentence' in the opening paragraph were intended to convey only that if the conviction was set aside the sentence must fall away. That this is so appears from the fact that the grounds of appeal detailed C in the notice challenge the conviction only.

On receipt of the notice of appeal the Attorney-General, be it noted not the Court a quo, gave notice that he would, at the hearing of the appeal, ask the Court to increase the sentence. I shall assume without deciding that this was in order.

D The Attorney-General's notice was, in addition to service on the appellant, served on the magistrate. In a report pursuant to that notice the magistrate set out, in some detail, his reasons for convicting the appellant.

As to the sentence he said:

'As far as the sentence is concerned the court was very much E lenient, offences like being dishonest in one's respectable job are supposed to be viewed in serious light and therefore a sentence without an option of a fine should be imposed. By giving a person a sentence with an option of a fine that encourages others to do likewise.'

The importance of this statement will appear later.

F The Court a quo dismissed the appeal against the conviction. It did, however, set aside the sentence imposed by the magistrate and substituted a sentence of two years' imprisonment. The appellant sought leave to appeal to this Court. The Court a quo refused such leave. Its reasons for so doing have been reported; see S v Peter 1987 (1) SA 348 (Ck). That report sets out the relevant issues. There is thus no need G to repeat what is there said.

The appellant then petitioned the Chief Justice for leave to appeal to this Court against the dismissal of the appeal against the conviction, and also against the increase of sentence. The learned Chief Justice thereafter granted leave to appeal against the sentence only.

H To facilitate the reading of this judgment I set out the relevant statutory provisions.

A. The Magistrates' Courts Act 32 of 1944

Section 92(1)(a). This reads:

'92. Limits of jurisdiction in the matter of punishments

I (1) Save as otherwise in this Act or in any other law specially provided, the court, whenever it may punish a person for an offence -

(a)

by imprisonment, may impose a sentence of imprisonment for a period not exceeding 12 months, where the court is not the court of a regional division, or not exceeding 10 years, where the court is the court of a regional division.'

B. Criminal Procedure Act 51 of 1977

(a)

J Section 116. This reads:

Galgut JA

A '116. Committal of accused for sentence by regional court after trial in magistrate's court

(1) If a magistrate's court, after conviction following on a plea of not guilty but before sentence, is of the opinion -

(a)

that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate's court; or B

(b)

...

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.'

(b)

Sections 119 and 122 appear in chap 19. I set out only s 119. This reads:

C '119. Accused to plead in magistrate's court on instruction of Attorney-General

When an accused appears in a magistrate's court and the alleged...