S v Tlame
| Jurisdiction | South Africa |
| Judge | Hiemstra CJ and Van der Merwe AJ |
| Judgment Date | 23 March 1982 |
| Citation | 1982 (4) SA 319 (B) |
| Hearing Date | 23 March 1982 |
| Court | Bophuthatswana Supreme Court |
Van der Merwe AJ:
The accused was charged with one count of robbery and another of theft and he was sentenced to 12 months' imprisonment, both counts being taken together for purposes of sentence.
Van der Merwe AJ
He was further ordered to compensate complainant in the sum of R30 within three months after discharge.
A The convictions are in order and the sentence of imprisonment is appropriate.
In making the compensatory order in terms of s 300 of the Criminal Procedure Act 51 of 1977, however, the magistrate did not follow the correct procedure nor should such an order have been made on the evidence before him.
B An award of compensation is a civil remedy and it can only be made in the event of a conviction. The enquiry into compensation should consequently only commence after conviction.
The enquiry commences with an application for compensation. It was held C in S v Maelane 1978 (3) SA 528 (T) at 529C - D that the application should be made after conviction and not during the criminal proceeding. I am in respectful agreement with this view.
The magistrate should conduct the enquiry as in civil proceedings without the customary pleadings. He should give the applicant an D opportunity to place evidence before him and he should give the accused an opportunity to challenge this evidence and to place evidence in rebuttal before him. Thereafter the magistrate should give the applicant and the accused an opportunity to address him (S v Van Rensburg 1974 (2) SA 243 (T) at 244G - 245E).
E In practice evidence relevant to compensation is often led during the criminal proceedings and s 300 (2) of the Act empowers the magistrate to have regard to this evidence. During the enquiry the accused should be given an opportunity to challenge this evidence.
The magistrate should also investigate whether the accused can pay the amount of compensation. If the accused has no assets that can be sold in F execution or if he has no income, a compensatory order cannot be enforced (S v Bepela 1978 (2) SA 22 (B) at 24F - G).
In this case the application for compensation was made during the criminal proceedings and after conviction the magistrate did not conduct a separate enquiry into compensation. He did not give the applicant an G opportunity to place further evidence before him nor did he give the accused an opportunity to challenge the evidence already led or to lead evidence in rebuttal. The magistrate did not give...
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S v Tshefu
...1978 (4) SA 26 (T): referred to S v Polman 1973 (3) SA 21 (C): referred to S v Sehlako 1999 (1) SACR 67 (W): referred to S v Tlame 1982 (4) SA 319 (B): referred S v Van Rensburg 1974 (2) SA 243 (T): dictum at 244G approved S v Vanmali and Another 1975 (1) SA 17 (N): referred to Stow v Regio......
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S v Medell
...different to the manner in which the sentence here under consideration was imposed. J 1997 (1) SACR p687 Hoffman AJ (2) In S v Tlame 1982 (4) SA 319 (B) Van der Merwe AJ, whilst dealing with A the feasibility of a s 300 order being coupled to a time limit, remarked (at 'The order under s 30......
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S v Smith
...required by the Act for the reason that it affects the complainant's right to claim compensation in a civil court. See S v Tlame 1982 (4) SA 319 (P) and S v Bepela 1978 (2) SA 22 (BH) at page 11. In S v Msiza 1979 (4) SA 473 (T) at page 474 the compensation order was set aside because the c......
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Ex parte Oster
...was informed that the applicant was also applying for admission as an advocate in the Republic of South Africa and that his application 1982 (4) SA p319 Hiemstra was being opposed by the Bar Council in that Division. If he should be admitted there, he could, in terms of s 5 of the Act, appl......
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S v Tshefu
...1978 (4) SA 26 (T): referred to S v Polman 1973 (3) SA 21 (C): referred to S v Sehlako 1999 (1) SACR 67 (W): referred to S v Tlame 1982 (4) SA 319 (B): referred S v Van Rensburg 1974 (2) SA 243 (T): dictum at 244G approved S v Vanmali and Another 1975 (1) SA 17 (N): referred to Stow v Regio......
-
S v Medell
...different to the manner in which the sentence here under consideration was imposed. J 1997 (1) SACR p687 Hoffman AJ (2) In S v Tlame 1982 (4) SA 319 (B) Van der Merwe AJ, whilst dealing with A the feasibility of a s 300 order being coupled to a time limit, remarked (at 'The order under s 30......
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S v Smith
...required by the Act for the reason that it affects the complainant's right to claim compensation in a civil court. See S v Tlame 1982 (4) SA 319 (P) and S v Bepela 1978 (2) SA 22 (BH) at page 11. In S v Msiza 1979 (4) SA 473 (T) at page 474 the compensation order was set aside because the c......
-
Ex parte Oster
...was informed that the applicant was also applying for admission as an advocate in the Republic of South Africa and that his application 1982 (4) SA p319 Hiemstra was being opposed by the Bar Council in that Division. If he should be admitted there, he could, in terms of s 5 of the Act, appl......