CA NO:  38/06

IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

JOHN DOMINIC PHAKWE

REVIEW JUDGMENT

HENDRICKS J:

[1]	This is an automatic review that initially came before my sister Leeuw J, who queried as to whether:-

[a]	the State succeeded in proving the identity of the accused beyond reasonable doubt;

[b]	why two other suspects were brought by the police to the witnesses for identification if it was known that the accused was the person who broke into the house;  and
[c]	whether the Magistrate have jurisdiction to impose a sentence of twelve (12) years imprisonment.

[2]	The Magistrate in his response addressed the questions raised in paragraph [a] and [b] above and I am satisfied that the identity of the accused was proven beyond a reasonable doubt.  The Magistrate’s reasoning cannot be faulted.

[3]	As far as the sentence is concerned, the Magistrate indicates that he erroneously wrote “years” instead of “months” and the sentence should have read “twelve (12) months imprisonment”.

[4]	It is understandable that a mistake creaped in when the Magistrate wrote the sentence on the charge sheet.

[5]	However, this clearly indicates that the Magistrate did not read the review documents before it was send to the Registrar.

[6]	It is highly regrettable that matters such as this one should delay unnecessarily.  This delay could have been avoided if the proceedings were read and corrected before it was dispatched.

[7]	I find myself unable to agree that even the proposed sentence of twelve (12) months is appropriate under the circumstances of this case.

[8]	In his address on the mitigation of sentence, the accused stated  that  he is  gainfully  employed  earning  an income of 
R1 000-00 per month.  He is single but he has a child and he is staying with his parents.

[9]	It is clear from the record that the Magistrate did not consider imposing a fine as a form of punishment on the accused, despite the fact that he is gainfully employed and also a first offender.

[10]	Under the circumstances I am of the view that the accused should be given a sentence with the option of a fine.

[11]	I therefore make the following order:-

	[i]	The conviction is confirmed.

[ii]	The sentence is set aside and substituted with the following:-

“R2 000-00 or twelve (12) months imprisonment.”

R D  HENDRICKS
JUDGE OF THE HIGH COURT

I agree.

SAMKELO GURA
JUDGE OF THE HIGH COURT
4 MAY 2006