22
it been, I have no doubt that a judge, as experienced as Blignault J, would
have dealt with it and possibly the outcome of the case would have been
different. Although there was some muted protestation on behalf of Mr
Prins about the fact that in the high court reliance had not been placed on
s 276 counsel accepted that the argument was one of law that can
properly be raised before us.
[27] Section 276(1) provides that:
‘Subject to the provisions of this Act and any other law and of the common law, the
following sentences may be passed upon a person convicted of an offence …’.
The
sub-section
goes
on
to
specify
imprisonment,
periodical
imprisonment, declaration as an habitual criminal, committal to an
institution established by law, a fine, correctional supervision and
imprisonment from which a person may be placed under correctional
supervision, as permissible sentences. Sub-section (2) makes these
powers in regard to sentence subject to other provisions requiring a court
to impose a specific sentence or limiting its powers in regard to sentence
or derogating from powers conferred under legislation to impose some
other type of sentence or order a forfeiture in addition to any other
punishment.
[28] The State argued that s 276(1) is a general penalty provision
empowering courts to impose sentences in all situations where there is no
other provision in law prescribing the sentence that can be imposed for an
offence.37 It contends that the section provides the legal foundation for the
imposition of sentences in relation to common law crimes as well as
statutory crimes, where no sentence is otherwise prescribed. Beyond that
the precise scope of the court’s sentencing powers depend upon whether
37 E du Toit, F J de Jager, A Paizes, A St Q Skeen and S van der Merwe Commentary on the Criminal
Procedure Act (loose-leaf) p28-9 (Service 47, 2011).
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