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[2023] ZAECMKHC 107
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S v Jordaan - Special Review (CA&R168/2023) [2023] ZAECMKHC 107 (6 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: CA&R168/2023
Delivered:
6 October 2023
In
the matter between:
THE
STATE
And
ROHAN
JORDAAN
SPECIAL
REVIEW JUDGMENT
Beshe
J
[1]
The accused in this matter stood trial on a
charge of assault with intent to cause grievous bodily
harm in the
East London Magistrates Court. He was assisted by a legal
representative. He was convicted as charged. The following
sentence
was thereafter imposed:
“
To pay a fine
of R3000 (Three Thousand Rand) or 12 (twelve) months imprisonment of
which 6 (six) months imprisonment is suspended
for a period of 3
(three) years on condition that the accused is not again convicted of
assault with intent to do grievous bodily
harm during the period of
suspension.”
[2]
The Magistrate has referred the matter to
this court for reviewal in terms of
Section
304(4) of the Criminal Procedure Act
[1]
on the
basis, so she concedes, that the sentence imposed lacks clarity in
respect of the terms of the suspension thereof. The matter
would
ordinarily not have been subject to a review in light of the fact
that the accused was assisted by a legal representative.
[3]
It is trite that the formulation of a
suspended sentence and the conditions attached thereto must be
clear
and precise. The example that is provided by this case underpins the
need for the wording of a suspended sentence and the
conditions
attached thereto, to be clear and precise. This case shows that the
lack of clarity in this regard makes it difficult
for the sentence to
be complied with or enforced. A reading of the sentence reveals that
it is only half of the term of imprisonment
that is suspended. As far
as the fine is concerned, it is not clear whether half thereof is
also suspended. The enforcer will be
left to guess that half of the
fine is also suspended. The worse scenario would be where an accused
person may have been in a position
to pay R1500.00 which is half of
R3000.00 but because there is no indication that half of the fine is
also suspended, he may end
up serving the term of imprisonment. Even
if he had the R3000.00, on what basis would he pay R1500.00 because
there is no indication
that part of the fine is suspended.
[4]
I am therefore in agreement with the
Magistrate that the sentence in so far as it relates to which
portion
thereof is suspended lacks clarity.
[5]
In the circumstances, it will be appropriate
to set the sentence aside and replace it with the following
sentence:
The accused is
sentenced to pay a fine of three thousand rand (R3000.00) or to
undergo imprisonment for twelve (12) months. Half
of the sentence,
namely R1500.00 or six (6) months imprisonment is suspended for three
(3) years on condition that the accused
is not convicted of assault
with intent to cause grievous bodily harm committed during the period
of suspension.
It is so ordered.
N G BESHE
JUDGE OF THE HIGH
COURT
MVIKO A J
I agree.
N P MVIKO
ACTING JUDGE OF THE
HIGH COURT
[1]
Act
51 of 1977.