S v Zulu

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Claassen AJP and Moll AJ
• Judgment Date: 26 September 1967
• Citation: 1967 (4) SA 499 (T)
• Hearing Date: 29 August 1967

Claassen, A.J.P.:

This is a matter that was referred by a reviewing Judge to the Court of appeal by virtue of sec. 98 (2) of the Magistrates' Courts Act, 32 of 1944, as amended.

Claassen AJP

The point referred to this Court for argument was what principle should be applied where the court a quo had passed a sentence less than the compulsory sentence required by sec. 334 ter of the Criminal Code.

A The facts of the case are as follows:

The accused was sentenced to six months' imprisonment for theft on 20th December, 1966. On 4th January, 1967, a Judge of this Division certified on review that the proceedings were 'in accordance with justice'. During April, 1967, an inspector visited the magistrate's court and it was then B discovered that the accused's previous convictions had qualified him for the compulsory sentence of corrective training. The magistrate has conceded that the sentence passed was incorrect.

On 24th April, 1967, that is four months after the date of conviction, the reviewing Judge withdrew his certificate given on review, and then referred the matter to this Court as stated above.

C This matter came before us on 29th August, 1967, that is, eight months after the accused had started serving his sentence. He must have been released from gaol several months ago.

Mr. Hartzenberg appeared on behalf of Alfred Zulu at the request of the Court. We are indebted to him for his assistance. The question arose D whether in a matter like this, where the convicted person's liberty was at stake, he should have had notice of the procedure.

In this respect I think practical considerations should guide.

(a)

Usually the convicted person is in gaol and he would not be able to be of any assistance to this Court if allowed to be present in person.

(b)

E It would in most cases impose an unnecessary burden on the prison authorities to bring him to court.

(c)

His interests would normally be well served by counsel appointed by the Court.

(d)

He has been warned after conviction that the record would be laid before a Judge and that he could make representations.

(e)

F It has been the practice for half a century or more to appoint counsel to represent the convicted person. See R v Sukana, 1916 T.P.D. 576, and R v Froneman and Froneman, 1941 T.P.D. 74. This last case seems eminently one in which notice to the convicted persons might have been given and G they would most likely have appointed their own counsel, yet it seems from the report that the hearing was conducted in their absence and without any notice to them.

It is in my opinion not necessary to give any ruling on this aspect of the procedure, because the powers granted to the Court under sec. 98 (2) H are so wide that, if the Court were of the opinion that the ordinary practice should in a particular case be departed...