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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

REVIEW CASE NO: SH 965

HIGH COURT REF: 420

DATE: 15 AUGUST 2008

In the matter between:

THE STATE

And

EPHRAIM K TSOTETSI AND SANDILE N MNGADI

JUDGMENT

MOLOPA J

This matter has come before this court on special review from the Magistrate Court for the District of Benoni.

The accused Sandile Norwel Mngadi ("The accused") was convicted on 12 December 2005 on a charge of housebraking with intent to steal and theft following on a plea of guilty in terms of Section 112 of the Criminal Procedure Act 51 of 1977, as amended ("The Act").

On 02 March 2006 the accused was sentenced in terms of Section 290 (1) (a) of the Act and referred to a reform school.

Apparently there is no designation for a reform school as there is no such facility in Gauteng. and the facilities in Mpumalanga have apparently also been closed down.

The sentence imposed on 02 March 2006 by the Magistrate Court. Benoni, Ms E Schutte can therefore not be executed.

Presently the accused is detained at Modderbee Correctional Centre pending his removal to a reformatory school, which is, as already stated, non existent.

In view of the above circumstances the sentence aforesaid has to be set aside.

In exercising my inherent power of review. I am of a considered view that Justice will not be served if the matter were to be referred back to the Magistrate. Benoni for imposition of another sentence.

As matters stand, the accused who was born on 06 July 1989 and who was 16 years old at the time of committing the offence and when he was sentenced on 02 March 2006 has been incarcerated since his arrest on 18 November 2005 as the record shows. He has now been in prison for two (2) years and nine (9) months. In my view justice has been served and as young as he is I am of the opinion that he should be given another chance and be re-intergrated in the society.

In the premises I make the following order

I. 'The sentence of 02 March 2006 mentioned above is set aside and substituted with the following

2. The accused is sentenced to 3 years imprisonment, half (1 /₂ years) of which is suspended for 3 years on condition that the accused is not found guilty of housebreaking, theft, robbery and/or other related crime during the period of suspension. The sentence is antedated to 02 March 2006.

Consequently the accused Sandile Norwel Mngadi must be released from the Modderbee and/or any other prison where he may presently be found, with immediate effect.

L M Molopa

JUDGE OF THE HIGH COURT

I agree

E M MAKGOBA

JUDGE OF THE HIGH COURT

It is so ordered

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