[N THE HIGH COURT OF SOUTH AFRICA

In the matter between:

and
THE STATE

				JUDGMENT

H J ERASMUS, J

[1]    The appellants were arraigned before the Regional Court in Wynberg on the following charges:

1.	Murder
2.	Robbery with aggravating circumstances
3.	Attempted murder
4.	Unlawful possession of a firearm
5.	Unlawful possession of ammunition
The appellants pleaded not guilty to all the charges. On 5 December 2001 they were convicted on all the charges except in respect of count 2 they were convicted of attempted robbery.

[2]	On 7 December 2001 they were sentenced as follows:
The first appellant on count 1, 20 years' imprisonment
On count 2, 10 year's imprisonment
On count 3, 10 years' imprisonment
On counts 4 and 5 taken together for purposes of
sentence, three years' imprisonment
It was ordered that the sentence of 10 years' imprisonment  in   respect of count 2  be  served concurrently with the sentence imposed in respect of count 1. The effective term of imprisonment was therefore 33 years.

The second appellant, on count 1 he was sentenced
to 15 years' imprisonment
Count 2, 10 years' imprisonment
Count 3, seven years imprisonment
Counts 4 and 5, two years' imprisonment
It was ordered that five years of the sentence in respect of count 2 be served concurrently with the sentence imposed in respect of count 1. The effective term of imprisonment was therefore 29 years.

[3]	The appeal of the appellants is against sentence only. In granting the second appellant leave to appeal against sentence, the magistrate stated that he had erred in sentencing the second appellant and that after conviction he should, in terms of section 52 of the Criminal Law Amendment Act 105 of 1997 have referred the matter to the High Court for imposition of sentence. The first appellant was granted leave to appeal against sentence by a magistrate other than the magistrate who had imposed the sentence on the ground that another Court may come to a different conclusion in regard to sentence. In granting leave he also referred to the view expressed by the trial magistrate that the matter should have been referred to the High Court for imposition of sentence.

"If a Regional Court has, prior to the date of the commencement of the Criminal Law (Sentencing) Amendment Act 2007:

(b)	not committed an accused for sentence by a High Court under this Act then the Regional Court must dispose of the matter in terms of this Act as amended by the Criminal Law (Sentencing) Amendment Act 2007".

[9] The appellants have been convicted of offences which fail within Part I of Schedule 2 of the Criminal Law Amendment Act in respect whereof imprisonment for life is prescribed in terms of section 51(1)(b) of the Act. in the charge sheet the appellants were warned that "section 51 of Act 105 of 1997 is applicable" to the charges of murder and robbery with aggravating circumstances. The appellants were legally represented at the trial. From the record it is clear that the magistrate and the legal representatives were under the impression that the minimum sentences prescribed in Part II of Schedule 2 in which lesser sentences than imprisonment for life are prescribed, were applicable, in the result the appellants were not pertinently alerted to the fact that conviction would bring the provisions of Part I of Schedule 2 of the Criminal Law Amendment Act into play. In the circumstances I am satisfied that it would not be fair at this stage to subject the appellants to the provisions of Part I of Schedule 2.

[13] In the case of second appellant, a total sentence of 22 years would be appropriate.   This can be achieved by
1 and the sentence of two years' imprisonment on counts 4 and 5 to be served concurrently with the sentence in respect of count 1.

[14]  In the result, the following orders are made:
1.	The sentences imposed by the magistrate on the first and second appellants are set aside and replaced by the following sentences:

Counts 4 and 5: Three years' imprisonment It is ordered that the sentence of 10 years' imprisonment in respect of count 2 and the sentence of three years' imprisonment in respect of counts 4 and 5 be served concurrently with the sentence imposed in respect of countl.
The effective term of imprisonment is therefore 30 years'.

Count 1: 15 years' imprisonment

The effective term of imprisonment is therefore 22 years.

4. The sentences imposed by this Court are in terms of section 282 of the Criminal Procedure Act 51 of 177, antedated to 7 December 2001.
H J ERASMUS, J