11 Feb 2014

A deduction of 12 days from a prison sentence may seem to be a triviality to someone who is not in prison but such a credit is a golden opportunity for someone who is a prisoner.

Court of Appeal's Justice Stephen Gaongalelwe said this when delivering judgement in a  case in which Ditiro Mangena was appealing that 12 of days of his incarceration were not included in his five-year sentence by the Mahalapye Magistrate Court for stock theft. Mangena appealed to the High Court against both conviction and sentence.

The appeal was dismissed in its entirety. His subsequent application for leave to appeal suffered the same fate at the High Court. Mangena pursued the application before the Court of Appeal which succeeded though only in regard to sentence and on the limited issue of failure by both the trial court and the appellant court (High Court) to take into account his pre-incarceration period of 12 days.

Justice Gaongalelwe said a refusal of the argument by the High Court judge in the circumstances amounted to confirming a prison sentence which was clearly wrong as no grounds had been given by the trial magistrate for not backdating the sentence.

He said the Court of Appeal supported the appeal by Mangena, which is a commendable approach in view of the issues involved.

The minimum mandatory prison term of five years was meted out to the appellant on December 2, 2010 while conviction was entered on November 11, same year.

Justice Gaongalelwe explained that it was a well-established principle in this jurisdiction that in passing sentences of imprisonment, the court should always take into account any period of pre-trail incarceration.

He said such a period with Mangena’s case was not taken into account and no reasons were advanced for not doing so adding that such court’s failure to deduct the requisite period, might as such possibly have been on account of an oversight.

He said this might be so since the trial magistrate did not allude to the issue at all and that the same issue was also not raised on appeal to the High Court. Justice Gaongalelwe was assisted by President of the Court of Appeal, Justice Ian Kirby and Lord Hamilton who all concurred with the decision. Ends