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[2021] ZAWCHC 144
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Killian v S (25/201/2021) [2021] ZAWCHC 144; 2021 (2) SACR 371 (WCC) (3 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
(Coram:
Samela J et Henney, J)
High
Court Ref No: 253/21
High
Court Review Case No: 25/201/2021
In
the matter between:
ZAKIR
KILLIAN
and
THE
STATE
JUDGMENT:
3 AUGUST 2021
Henney,
J
Introduction
[1]
The case came before me as an automatic review in terms of section
302 of the Criminal
Procedure Act 51 of 1977 (“the CPA”).
The accused was convicted by the Magistrate Cape Town on 6 May 2021
of
contravening section 17(a) of the Domestic Violence Act, Act 116
of 1998 (“the DMA”), because he contravened the
conditions
of a protection order that was issued on 21 August 2016 in
terms whereof he was prohibited from entering the premises of the
complainant,
who is his mother, whilst he was under the influence of
alcohol. He was further prohibited in terms of the Protection
Order,
not to damage or remove the property of the complainant.
[2]
He pleaded guilty to a charge, that he on 5 March 2021 failed to
adhere to the conditions
of the protection order by entering the
property of the complainant and threatened to kill her. He was
properly convicted
after he was questioned by the Magistrate in terms
of the provisions of
section 112(1)(b)
of the
Criminal Procedure Act
(“the CPA”).
[3]
He was subsequently sentenced to a fine of R5000 or 6 months
imprisonment which was
wholly suspended for a period of two (2) years
on condition that he is not again convicted of assault which is
committed during
the period of suspension. After having perused
the record, I raised the following query to be sent to the
Magistrate:
“
The Magistrate is
kindly requested to give reasons as to why he imposed a condition to
the suspended sentence that the accused not
be convicted of the crime
of assault, which is a crime to which he had not been convicted.
The accused was convicted of
contravening
section 17(a)
of the
Domestic Violence Act 116 of 1998
,
although the crime contained an element of assault in that he
threatened to assault the complainant, when he failed to comply
with
the Protection Order.
The effect of this condition
is that should the accused be convicted once again of contravening
the conditions of the Protection
Order in contravention of
section
17(a)
of the
Domestic Violence Act 116 of 1998
, it would not amount
to a failure to comply with the condition of suspension.”
[4]
I received a reply from the Magistrate dated 29 July 2021, where he
stated that he
agrees with this court’s concern, although the
crime contained an element of assault, because the accused also
grabbed his
mother’s arm, placed his finger in her face and
threatened to kill her. He notes that it was an oversight by
omitting
the added condition that the accused should not be convicted
of contravening
section 17
(a) of the DMA.
[5]
It is well established that when a court imposes a suspended
sentence, the conditions
of such a suspended sentence must adhere to,
two overriding requirements. The first requirement is
that the conditions
of suspension relating to the offence that an
accused person should not commit, is that, that offence should be
related or connected
to the offence for which he is sentenced.
In this regard, Hiemstra’s
[1]
Criminal Procedure with reference to the cases of R v Cloete
[2]
and S v Mjware
[3]
states the
following:
“
If offences are
specified which the offender may not commit without being exposed to
the putting into operation of the suspended
sentence, there has to be
a
measure of kinship between such offences and the offence
of which the offender was convicted
. In the case of theft,
for example, it would be unacceptable to impose a condition of
suspension requiring the accused not to drive
recklessly. On
the other hand, so it is submitted, there is a growing tendency to
cast the net too narrowly
.”
(emphasis
added)
[6]
The learned authors further states that the second requirement
developed by the courts
is that the condition must be precisely
formulated and I agree that the primary object is after all that the
accused must know
what he or she has to do or avoid in order to
ensure that sentence imposed is not put into operation. And the
second purpose
is that the court which later has to consider the
possible putting into operation must be able to determine the ambit
of the conditions.
The implications thereof would be that where
the latter court doubts that the accused properly understood the
condition or is itself
not certain whether the later act or omission
fall within the ambit of the condition, the court must give the
accused the benefit
of the doubt.
[7]
This particular case, clearly illustrates, how the conditions of a
suspended sentence
should not be formulated. In this case, although
there might be a connection between the offence of assault and a
contravention
of
section 17(a)
DMA because the contravention thereof
contained an element of violence, this would not always be the case.
To the accused,
it would not be clear what would happen should he be
found guilty of contravening
section 17(a)
of the DMA and have not
committed the crime of assault.
[8]
In my view, the latter court in terms of
section 297(9)
of the CPA,
that would be considering whether a further contravention of
section
17(a)
of the DMA, was a breach of the conditions of suspension would
not be able to make a finding that the accused breached the
conditions
of suspension, because he was not convicted of assault.
A contravention of
section 17(a)
of the DMA even if it can be argued
that the crime of assault is clearly connected or related thereto,
would not in all circumstances
be in the form of an assault.
[9]
In my view therefore, the sentence imposed is not in accordance with
justice because
firstly, it is not sufficiently related or connected
with the offence charged. And secondly, it was not clearly
formulated
to achieve the objectives of informing the accused for him
to clearly understand, what he has to do or avoid in order to ensure
that the sentence is not put into operation.
[10]
Furthermore, the formulation of the sentence would clearly create
doubt in the mind of the court
what it has to consider during a
possible application for the suspended sentence, to be put into
operation.
[11]
In the result therefore, the sentence imposed by the Magistrate is
set aside and replaced with
the following:
“
The
accused is sentenced to a fine of R5000 or six (6) months
imprisonment which is suspended for a period of two (2) years on
condition that he is not convicted of contravening
section 17(a)
of
the
Domestic Violence Act 116 of 1998
or assault and which is
committed during the period of suspension
”.
R.C.A. Henney
Judge of the High
Court
I
agree.
M. I. Samela
Judge of the High
Court
[1]
Latest
update by Albert Kruger – May 2021 – Ch 28 – 79,
80
[2]
1950(4)
SA 191 (EDL)
[3]
1990
(1) SACR 388
(N)