South Africa: High Courts - Gauteng

         The two accused are both 19 years old.

         They appeared on a charge of robbery in the magistrate's court of Bolobedu. They were found guilty on one count of robbery and another count of attempted robbery.

         Both accused were sentenced to three years imprisonment, both counts being taken together for purposes of sentence.

         Aggravating circumstances are present in that a knife was used and both complainants were stabbed.

         Although the charge-sheet does refer to the provisions of section 51(2) of the Criminal Law Amendment Act, 105 of 1997, it does not appear to have occurred to the trial magistrate that his jurisdiction does not allow the imposition of the minimum sentences decreed by this statute.

         The provisions of the said section, and the schedule published in accordance therewith, were never explained to the accused during the trial.

         It is clear that the provisions of section 51(2) of Act 105 of 1997 do not apply to the district court or magistrate's court. It is only a regional court and the high court that can act in accordance with this section.

         The two accused are consequently very fortunate indeed that they were not charged in the regional court. There would have been a very real risk of their having been given the minimum sentence if they had been charged in a court with appropriate jurisdiction to impose fifteen years imprisonment.

         There may have been compelling and unusual circumstances present – the state, ably represented by State Advocate A van Deventer and Ms H E van Jaarsveld, Deputy Director of Public Prosecutions Transvaal, suggests that imprisonment of between five and seven years might have been appropriate.

         Be that as it may, the judge on review enquired whether the sentences were not too severe.

         I find myself constrained to differ, and to differ profoundly. I agree with the state that the sentences are far too light.

         It is indeed unfortunate that the accused were not charged in the regional court.

         0n the other hand, for reasons that are obviously not recorded, the prosecution may have decided that the charges in this case were such that they could be prosecuted in the magistrate's court.

         There is nothing to prevent the prosecution from instituting a prosecution for robbery in the magistrate's court, even if aggravating circumstances are present.

         Whether this correctly reflects the intention of the legislature in passing the much-maligned Act 105 of 1997 is a different matter. It is certain, however, that the Act does not interfere with the discretion of the Director of Public Prosecutions and his delegated officials to prosecute a charge that might attract the minimum sentence in a different court in the magistrate's court. Under the circumstances the conviction and sentences must be confirmed.

                                                               E BERTELSMANN
                                                               JUDGE OF THE HIGH COURT

                                    I agree


                                                               R D CLAASSEN
                                                               JUDGE OF THE HIGH COURT
A443-2005

IN THE ORDINARY COURSE OF EVENTS