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DIE CORRECTED VERSION IS OP DIE COMP NIE OP MEM. STICK EN IS AFGEGEE 05/04/07

CA NO: 110/06

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

HENRY COKA

REVIEW JUDGMENT

HENDRICKS J:

A. Introduction:

[1] The accused, Henry Coka, was convicted on the 31^st October 1997 in the Regional Court at Ga-Rankuwa on 27 counts of theft of motor vehicles, one count of theft of a motor vehicle engine (count 28), one count of fraud (count 29) and 28 counts (counts 33 – 60) of contravening Section 56 (3) of the Road Traffic Act, Act 7 of 1973.

[2] He appealed to this court against the convictions only, which appeal was dismissed by Khumalo et Hendler JJ on 5 June 1998.

[3] He then petitioned the Supreme Court of Appeal for leave to appeal against the convictions and the sentence imposed. Leave to appeal against the convictions was refused.

[4] Seeing that the accused never appealed to this court against the sentence imposed, Nugent JA et Van Heerden JA requested the Judge President of this division to nevertheless consider the appropriateness of the sentence imposed, by exercising the general powers of review which this court has in terms of Section 304 (4) of the Criminal Procedure Act, Act 51 of 1977.

B. Ad sentence:

[5] The Regional Magistrate imposed the following sentence on the accused, who was accused 1 in that court:-

“Beskuldigde 1 op elk van die 27 aanklagte word hy gevonnis tot Drie Jaar Gevangenisstraf.

Aanklag 28 Een Jaar Gevangenisstraf.

Aanklag 29 Een Jaar Gevangenisstraf.

Aanklagte 33 tot 60 Ses Maande Gevangenisstraf.

Samelopend moet hy gevolglik effektief 24 jaar uitdien.”

[6] With due respect to the Learned Regional Magistrate, the wording in respect of the impositioning of the sentence on the accused does not make sense. It is difficult to understand how the Magistrate arrived at the effective term of 24 years imprisonment.

[7] Even if it can be accepted that the Magistrate guarded against the cumulative effect of imposing too severe a sentence, it is not clear whether he wanted to order that some of the sentences should run concurrently or whether he took some of the counts together for the purpose of sentence.

[8] By using the word “samelopend”, it may be inferred that the Regional Magistrate intended that some of the sentences should run concurrently.

[9] In imposing sentence, care should be taken that the wording is not ambiguous, but that it is logically structured to be easily understood.

[10] I have carefully perused the judgement on sentence and I am satisfied that the Regional Magistrate’s reasoning cannot be faulted. He carefully considered all the factors relevant to the imposition of a suitable sentence. None of these factors were either over- or under-emphasized at the expense of the other.

[11] I am of the view that an effective term of 24 years imprisonment is an appropriate sentence having regard to the nature and the seriousness of the offences of which the accused was convicted; the multiplicity of the counts; the modus operandi used when these offences were committed, as well as the interest of society. In my view, the personal circumstances of the accused were also given due consideration.

[12] I am satisfied that the sentence imposed is appropriate under the circumstances of this case.

[13] To rectify the wording of the sentence that was imposed, the sentence should be set aside and be replaced with an appropriately worded order.

C. Conclusion:

[14] In the premises, I make the following order:-

The sentence imposed by the Regional Magistrate is set aside and substituted with the following:-

[i] Counts 1 - 27 - Three (3) years imprisonment on each count.

The sentences imposed on counts 9 – 27 should run concurrently with the sentences imposed on counts 1 – 8.

(Effectively twenty four (24) years imprisonment.)

[ii] Count 28 - One (1) year imprisonment.

[ii] Count 29 - One (1) year imprisonment.

[ii] Counts 33 – 60 - six (6) months imprisonment on each count.

It is ordered that the sentences imposed on counts 28, 29, 33 – 60 should run concurrently with the sentences imposed on the first eight counts.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

M T R MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree.

M M LEEUW

JUDGE OF THE HIGH COURT

23 NOVEMBER 2006

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