IN THE HIGH COURT OF SOUTH AFRICA

JUDGMENT

BOZALEK. J:

[1] The appellant was convicted in the George Regional Court on one count of murder and one count of attempted robbery. He was sentenced on 24 October 2006 to 15 years' imprisonment on the count of murder and five years' imprisonment on the robbery count. The magistrate ordered that the two sentences run concurrently. With the leave of the magistrate, the appellant now appeals against both his convictions and sentences. The appellant was apprised in the charge sheet that the provisions of section 51 of Act 105 of 1997 ("the Act"), colloquially known as the minimum sentence Act, woutd be applicable to both the murder count and the robbery count.

[2] The latter count averred that aggravating circumstances were present as described in section 1 of Act 51 of 1977 in that a dangerous weapon was used in the robbery, to wit a knife and/or a bottelkop (broken bottle). However, in sentencing the appellant on count 1, the magistrate misdirected himself in finding that in the absence of "substantia! and compelling circumstances" as envisaged in the Act, he was compelled to impose a minimum sentence of 15 years' imprisonment. In fact, regard being had to section (c)(ii) of Part I of Schedule 2 to the Act read with section 52(1)(i) of the Act, the appellant qualified for a minimum sentence of life imprisonment inasmuch as he had been convicted of attempted robbery with aggravating circumstances as above described.

[5] The present matter is, however, not such a case and I consider therefore that, tn the ordinary course, the appropriate course would be to set the sentences aside and refer the matter to a single judge of the High Court. In my view, it would be appropriate to set aside both sentences since the sentence imposed by the magistrate on the count of attempted robbery was linked to and influenced by the sentence imposed on the count of murder.

[6] This state of affairs is, however, potentially affected by the fact that with effect from 31 December 2007 the minimum sentence dispensation has been changed The Regional Court now has jurisdiction to impose a sentence of life imprisonment on persons whom it has convicted of offences referred to in Part I of Schedule 2 to the Act The new dispensation has been affected by the provisions of the Criminal Law (Sentencing) Act 38 of 2007. However, one of the functions which that Act serves is to insert into the Act, namely the Criminal Law Amendment Act 105 of 1997, a savings clause in the form of section 53(3).   That savings clause, insofar as it is relevant, reads as follows: "Any appeal against -

The effect of that savings provision is then, it appears to me, to preserve the earlier dispensation in aspic, as it were, for the purposes of the determination of an appeal against a conviction or sentence imposed under the pre-2008 dispensation. A necessary consequence of this, in my view, is that this Court remains obliged to set aside the incompetent sentence or sentences imposed by the magistrate and remit the matter to a single judge of the High Court to deal with the confirmation of the convictions and sentencing.

[7] In the result I would set aside the incompetent sentences, strike the appeal off the roll and refer the matter to a single judge of the High Court.

IRISH, AJ

1.	The sentence of 15 years' imprisonment and five years' imprisonment imposed by the trial Court in respect of the counts of murder and attempted robbery respectively are set aside.
2.	The appeal is struck off the roll.
3.	The matter is referred to a single judge of the High Court to proceed in terms of section 52 (as it then was) of Act 105 of 1997.
BOZALEK, J