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[2021] ZAWCHC 229
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S v Martin (275/2021) [2021] ZAWCHC 229; 2022 (1) SACR 421 (WCC) (15 November 2021)
“
REPORTABLE”
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
High Court Ref
No: 275/2021
Magistrate Serial
Number: B554/2021
In
the matter
between:
THE
STATE
And
EUGENE
MARTIN
JUDGMENT
DELIVERED 15 NOVEMBER 2021
LEKHULENI
AJ
[1]
This matter comes before this court by way of automatic review in
terms of the provisions
of section 302 of the Criminal Procedure Act
51 of 1977 (“
the CPA”
). The accused who was not
legally represented after he elected to conduct his own defence was
convicted in the Magistrates Court,
Kuilsriver on 15 July 2021 on a
charge of theft. It was alleged by the State that on 27 June 2021 and
at Food Lovers Market Pinehurst,
Kraaifontein, the accused unlawfully
and intentionally stole a pack of sirloin steak to the value of
R1112, 93 the property in
the lawful possession of Food Lovers Market
or Thabisa Nyameka. The accused pleaded guilty to the charge and
pursuant to that plea,
the magistrate convicted the accused after he
questioned him in terms of section 112(1)(b) of the CPA. The trial
court thereafter
sentenced the accused to four thousand rand (R4000)
or (4) months’ imprisonment which was wholly suspended. After
perusing
the record, this court was satisfied that the conviction of
the accused was in accordance with justice. I was however concerned
with the sentence imposed by the trial court, in particular, the
conditions the court imposed when it suspended the operation of
the
sentence.
[2]
The court’s concerns were borne out by the following facts: In
her ex tempore
judgment, the magistrate stated that the sentence was
suspended for a
period of four months
on condition that the
accused is not found guilty of theft, attempted theft, fraud, robbery
and contravening section 36 or section
37 of the General Law
Amendment Act 62 of 1955 which is committed during the period of
suspension. The four month period of suspension
was repeated twice in
her judgment. In the sentence annexure marked ‘Annexure B’
attached to the charge sheet, the
magistrate noted that the whole
sentence was suspended for a period
of five years
on similar
conditions enunciated above.
[3]
On 22 July 2021, this Court raised a query and requested the
presiding magistrate
to provide reasons and clarify the following:
“
1. For how
long was the sentence suspended. On page 15 of the transcribed record
it is recorded that the period of imprisonment
is suspended for four
months. On Annexure B to the charge sheet dealing with sentence, it
is stated that the period of imprisonment
is suspended for five
years.
2. Is the
sentence of Four thousand Rand (R4000) or four- month imprisonment
not too harsh? The magistrate is requested to give
reasons for her
judgment.
3. Why was fraud
and robbery made a condition of the sentence when the accused was
only convicted of theft?”
[4]
The learned magistrate delayed in responding to the questions raised
by the court
as she stated that she was booked off sick and could not
attend to the query immediately. In response to the questions raised
above,
the presiding magistrate indicated that she intended to
suspend the sentence for a period of five years and that this court
should
accept it that it was a bona fide error on her part to say
four months in her ex tempore judgment. She requested this court to
correct the sentence accordingly.
[5]
As regard this court’s query on the harshness of the sentence
imposed, the magistrate
held the view that the sentence was not
necessarily too harsh under the circumstances, especially when one
considers the previous
convictions of the accused. The magistrate
stated that the accused was convicted of a similar offence (theft) in
preceding ten
months prior to this case and he received a suspended
sentence of R3000 or six -month imprisonment which was wholly
suspended for
five years. The magistrate alluded to the fact that
although it was clear that the suspended sentence in respect of the
previous
conviction did not have the desired effect of deterrence to
the accused, however she thought it prudent to impose a sentence
similar
in nature to afford the accused the opportunity to pay a
fine. I find the explanation of the magistrate in this regard,
plausible
and persuasive.
[6]
Regarding the conditions of suspending the sentence, the magistrate
stated that theft
is a competent verdict of robbery. She also stated
that from the record of previous convictions, the accused was found
guilty of
assault with intent to do grievous bodily harm. For this
reason, she was of the view that it was appropriate to make fraud and
robbery a condition of suspension of the sentence to deter the
accused from committing crimes of dishonesty and violence.
[7]
I find the approach of the Magistrate in this regard problematic. It
must be stressed
that it is now trite that a condition of sentence
must be fair and reasonable to the accused and must not be onerous.
It must not
lead to future unfairness or injustice. Most importantly,
a suspended sentence must comply with the accused’s right to a
fair trial enshrined in section 35(3) of the Constitution. The right
of an accused person to a fair trial requires fairness to the
accused
as well as fairness to the public as represented by the state –
See
S v Jaipal
[2005] ZACC 1
;
2005 (5) BCLR 423
(CC) par 29.
[8]
The suspension of sentence in the criminal courts is governed by
section 297(1) of
the CPA. This section provides as follows:
“
Where
a court convicts a person of any offence, other than an offence in
respect of which any law prescribes a minimum punishment,
the court
may in its discretion –
(a)
postpone for a period
not exceeding 5 years the passing of sentence
and
release the person concerned –
(i)
on one or more conditions, whether as to –
…
(hh)
any other matter, and order such person to appear before the court at
the expiration of
the relevant period; or
(b)
pass sentence but order
the operation of the whole or any part thereof to
be
suspended for a period not exceeding 5 years on any condition
referred to in paragraph (a)(i) which the court may specify in
the
order …”
[9]
This provision in my view must be interpreted in tandem with section
35(3) of the
Constitution which guarantees the rights of an accused
person to a fair trial. Notably, this section must be interpreted
purposively
to promote the spirit, purport and objects of the Bill of
rights as articulated in 39(2) of the Constitution. Section 39(2) of
the Constitution requires judicial officers to read legislation, in
this case the CPA, where possible, in ways which give effect
to its
fundamental values and in conformity with the Constitution. See
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors: In Re Hyundai Motor Distributors (Pty)
Ltd and Others v Smit NO and Others
2000 (10) BCLR 1079
(CC) at
para 22.
[10]
Mindful of the imperative to read and interpret legislation
purposively in conformity with section
39(2) of the Constitution, I
turn to consider the import of section 297(1)(b) of the CPA from a
constitutional prism in the context
of this case. It is trite law
that a suspended sentence has two beneficial effects.
First
,
the primary aim of a suspended sentence with a negative condition,
that is, a condition that requires the offender not to repeat
the
crimes specified, is to keep the convicted person out of prison and
avoid the deleterious effects of direct imprisonment. The
second
objective is to deter the offender from committing similar
offences in that the suspended sentence hangs over the
offender’s
head and if he behaves he will not have to serve it.
S v Koko
2006 (1) SACR 15
(C).
[11]
In my view, the offences which are set as conditions that an accused
may not commit,
without
him being exposed to the putting into operation of the suspended
sentence, must be fair and reasonable and must not be wider
than the
offence of which the accused has been convicted. A derogation from
this well-established principle in my view offends
against the
accused’s right to a fair trial enshrined in section 35(3) of
the Constitution. I appreciate the fact that there
has to be
a measure of kinship between the offences set as a condition and
the offence of which the offender was convicted
as was recently
restated by Henny J, in
S
v Killian
2021
(2) SACR 371
(WCC) at para 5, however in my considered view, offences
set as conditions must not be more onerous and serious than the
offence
of which the accused was convicted.
[12]
The condition for suspending a sentence must be fair, just and
reasonable. In other words, it
must be couched in such a way that it
does not cause unfairness or injustice to the accused
.
In
S v Van
den Berg
1976 (2) SA 232
, (TPD), in which
certain guidelines for the exercise of the discretion to suspend
sentences was laid down, it was held
inter
alia,
that it was undesirable that a large
number of offences, even if there was a relationship between them,
should be included in the
condition of suspension. The condition of
suspension must be related to the offence in question and must not be
too wide to the
extent that it has no connection with the offence
concerned. See also
S v Mdluli, S v Thage, S v
Hlongwane
2009 JDR 0395 (GSJ) at p.4. Similar
sentiments were echoed in
S v Delubom
[2009] JOL 24303
(Tk) at paras 6 and 7.
[13]
In the present matter, the magistrate made the competent verdicts of
theft as conditions for
the suspended sentence but also included
robbery and fraud as additional conditions. In my view, it was not
legally competent for
the trial court to include these two offences
as additional conditions. Theft is a competent verdict of robbery in
terms of section
260 of the CPA. Robbery is a more serious offence
although related to theft. It would have been different if the
accused was convicted
of robbery. In that event, it would have been
within the magistrate’s power to make theft or attempted theft
a condition
of suspension.
[14]
The trial court also made fraud a condition of suspension. According
to the magistrate, this
was because the accused had a previous
conviction of assault and according to her, she thought it wise to
make this order to deter
the accused from committing crimes of
dishonesty. In my view, it was impermissible for the trial court to
make such a condition
especially bearing in mind that the
definitional requirements of fraud and theft are different.
[15]
It should be emphasised that any condition imposed by the sentencing
court must bear at least
some relationship to the circumstances of
the crime which is being punished by the imposition of the suspended
sentence. The
condition must be stated with such precision that
the convicted person is placed in a position to understand the ambit
of the condition.
R v Cloete
1950
(4) SA 191
(E) at 192G. It must be stated in such manner that there
should be no room for misunderstanding. In
S v
Allart
1984 (2) SA 731
(T), it was said that
the conditions of suspension must be framed in such a way that they
take account of human fallibility.
[16]
More importantly, a suspended sentence should not be worded in such a
way that a subsequent petty
offence may trigger the operation of a
severe suspended sentence. In my view, an appropriate qualification
to a suspended sentence
must be made to ensure that the operation of
the sentence is not activated for relatively trivial offences. In
other words, the
conditions of suspension should be circumscribed in
such a way that subsequent minor contraventions do not result in the
suspended
sentence coming into operation.
[17]
The sentence imposed by the trial court in this matter is potentially
susceptible to trigger
the operation of the suspended sentence even
in instances where the accused is sentenced for a petty crime of
theft. In my view,
this will not be fair or in the interest of
justice. In
S v Allart
(
supra
) at 736B,
the court held that it should not be left to the court considering
the putting into operation of the suspended sentence
to ensure
fairness.
[18]
In my opinion, the correct approach should be that the conditions
imposed by the trial court
must be formulated in such a way that it
will not be possible for a minor contravention to activate the
operation of the substantial
suspended sentence imposed by the trial
court. In
my view, where
a suspended sentence of imprisonment has been
imposed, the suspensive condition should be such that it refers only
to a condition
for which imprisonment is imposed without the option
of a fine in order to limit the type of crime that may breach the
conditions
to fairly serious crimes – See
S v Standaard
1997
(2) SACR (C) 668 at 670cd;
S v Tsanshana
1996 (2) SACR 157
(E)
at 160a.
[19]
Consequently, the sentence imposed by the trial court has to be
corrected to reflect the correct
period of suspension and to include
the rider at the end of the sentence: “
for which he is
sentenced to unsuspended imprisonment without the option of a fine.”
This will ensure that petty offences of theft or attempted theft do
not trigger the operation of the suspended sentence.
ORDER
[20]
In the result, I would propose that the sentence imposed by the trial
court be corrected to read
as follows:
20.1
“The accused is sentenced to a fine of four thousand rand
(R4000) or four (4) months imprisonment which
is wholly suspended for
a period of five years on condition that the accused is not found
guilty of Theft, Attempted theft, contravening
section 36 or 37 of
Act 62 of 1955 committed during the period of suspension for which he
is sentenced to unsuspended imprisonment
without the option of a
fine.”
LEKHULENI AJ
ACTING JUDGE OF
THE HIGH COURT
I
agree and it is so ordered:
DOLAMO J
JUDGE OF THE HIGH
COURT