African Studies Quarterly Volume 10, Issues 2 & 3 Fall 2008 Sabelo J. Ndlovu-Gatsheni is a Lecturer in African Studies at the Ferguson Centre for African and Asian Studies at the Open University, Milton Keynes, United Kingdom. Before joining the Open University, Ndlovu-Gatsheni was Senior Lecturer.

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South Africa: Free State High Court, Bloemfontein You are here: >> >> >> >> [2016] ZAFSHC 90 S v Tshabalala (102/2015) [2016] ZAFSHC 90 (5 May 2016) Download original files Bookmark/share this page IN THE HIGH COURT OF SOUTH AFRICA, FREE STATE DIVISION, BLOEMFONTEIN Reportable Circulate to Migistrates Review No.: 102/2015 In the review matter between: THE STATE and NOMVULA LINAH TSHABALALA CORAM: MOCUMIE, J et OPPERMAN, AJ DELIVERED: 05 MAY 2016 The Court. [1] The accused was convicted of theft by the Magistrate's Court, Witsieshoek, Phuthaditjaba, Free State on 26 January 2015. The conviction followed after a plea of guilty in terms of s 112(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA). She was sentenced as follows: 'Fined one thousand five hundred rands (R1500.00) or in default of payment to undergo three (3) months imprisonment. In terms of the Firearms Control Act accused is determined fit to possess a firearm (Section 103(2) of )' [2] On 10 June 2015, when this court received this matter on review; it was under covering letter dated 14 April 2015 which reads: 'I forward herewith the record and J4 for review. The accused was charged with theft and she pleaded guilty and the plea was accepted by the State in terms of of Act 51 of 1977 and the accused was convicted. The Prosecutor who accepted the plea in terms of section 112(1)(a) then proved previous convictions and asked for direct imprisonment.

I am forwarding the record of proceedings in order for the reviewing Judge to see whether the proceedings were in accordance with justice. The delay in submitting is regretted since there is no co-operation with the support services and it is beyond my control. Regards' [3] On 19 June 2015 the review was sent back to the magistrate with queries.

The request was apparently received by the magistrate on 29 August 2015. It consisted of the following: '1. It took 5 months for this matter to be sent on review contrary to the clear provision of s 302 of Act 51 of 1977. The magistrate's explanation is not clear. What is meant by 'no co-operation with the support services'? Is section 112(1)(a) the appropriate procedure to have adopted in the circumstances of this case?

The accused was unrepresented; the Prosecutor was aware that she has previous convictions of theft and even asked for direct imprisonment. Refer to recent decided cases. Is the sentence appropriate considering that the accused is what can be safely called a serial thief? What are the reasons for imposing this type of sentence? Refer to decided cases.' [4] On 20 October 2015 a reply to the query dated 9 October 2015 was received.

The reasons provided read as follows: 'The matter is referred to the Honourable Reviewing Judge as a special review in terms of section 304(4) of the Criminal Procedure Act 51 of 1977 because the Public Prosecutor applied for a sentence of direct imprisonment after having accepted the plea in terms of section 112(1)(a) of Act 51 of 1977. With reference to 'no co-operation with support services'- the trial court meant that it took some time to have the record transcribed and such delay is regretted and will be avoided in future. (Accentuation added) 1. The trial court understands fully the concerns of the Honourable Reviewing Judge regarding Section 112(1)(a) bearing in mind that it does not say anything about the period of imprisonment except the fine which must not exceed the amount determined by the Minister from time to time in the Gazette. The judgments in the case of State v Modumela and others (FB) and State v Kholoane 2012(1) SACR 8 (FB) are noted. After considering the decided cases, it appears that the trial court treated the accused person with kid gloves but the accused had shown remorse which was translated into action by pleading guilty- S v Brand 1998(1) SACR 296 (C)-if the accused shows genuine remorse, punishment will be accommodating, especially when the accused has taken steps to translate his or her remorse into action. Sentence in respect of a plea in terms of section 112(1)(a) must be a fine with an alternative term.