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[2017] ZAFSHC 8
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S v Phantsa (R160/2016) [2017] ZAFSHC 8 (5 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Review
number: R160/2016
In
the matter between:
THE
STATE
and
TSHOKOLO
JOHN PHATSA
CORAM:
DAFFUE,
J
et
REINDERS, J
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
5
JANUARY 2017
AUTOMATIC
REVIEW IN TERMS OF SECTION 302(1)
OF
THE CRIMINAL PROCEDURE ACT, 51/1977
[1]
This is an automatic review. The accused was convicted on two
counts, to wit count 1, being housebreaking with the intent
to steal
and theft and count 2, possession of dagga in contravention of s 4(b)
of Act 140 of 1992.
[2]
On 1 June 2016 the accused was sentenced as follows and I quote
verbatim
from the J15 which corresponds with the transcribed
record:
“
Count
1 fined R4000 (four Thousand Rand) or 3 (Three) years imprisonment.
On count 2 3 (Three) months imprisonment.
Both sentences are
wholly suspended for a period of 5 (Five) years, on condition that
the accused is not convicted of housebreaking
with the intent to
steal and theft, committed during the period of sentence (sic) and or
contravention of section (4)(a) and 4(b)
of Act 140 of 1992,
committed during the period of sentence (sic).”
The
accused was also declared unfit to possess a firearm whilst the dagga
was forfeited to the State in terms of s 25 of Act 140
of 1992.
[3]
Jordaan, J queried the sentence as long ago as 26 July 2015 and I
quote:
“
1.
On what basis can the sentence on the charge of housebreaking be
suspended on condition that accused
do not contravene sections 4(a)
or (b) of act 140 of 1992?
2.
The converse applies to the sentence for possession; how can the
suspension be conditional on the
accused not committing
housebreaking?”
[4] On 19 October 2016
the magistrate responded in writing as follows and I quote
verbatim
:
“
I confirm
that the accused appeared in person before me on 1 June 2016.
1.
I
concede that that (sic) the rights to appeal were not fully explained
as per the records
ex
facie
;
2.
I
further concede that the rights to deferred fine were explained even
though the rights to deferred fine were not fully explained.
The
oversight is regretted and will never be repeated.
It
is my submission that the conviction and sentence were in order and
thus be confirmed.”
[5]
The magistrate’s response was immediately dealt with by
Jordaan, J on 19 October 2016 and I quote:
“
Both
sentences were suspended on the same condition, which therefore
applies to both sentences. Therefore question 1 and 2
were
posed!
Please
answer those questions!
Your
comment on the aforesaid is required.”
[6]
The magistrate responded and apologised for his late replying due to
his working conditions. In his written response dated
22
November 2016 he stated the following:
“
1.
I meant to say that on count 1, the sentence is suspended on
condition that the accused is not convicted
of housebreaking with
intent to steal and or theft committed during the period of
suspension; and
2.
On count 2 the sentence is suspended on condition that the accused is
not convicted of contravention
of section 4(a) or 4(b) of Act 140 of
1992, committed during the period of suspension.
It
is my humble submission that the conviction and sentence were in
order and thus be confirmed.”
Although
the magistrate clearly admitted fatal errors as indicated in his
responses, he still expressed the view that the convictions
and
sentences were in order. Unfortunately the approach is flawed.
[7]
I am satisfied that the convictions are in order, but the sentences
should be set aside to give due effect to the intention
of the
magistrate, but in particular to accord with the principles
applicable to the suspension of sentences. The offence(s)
mentioned in the condition must be connected to the offence for which
sentence is imposed. See Kruger A,
Hiemstra’s
Criminal Procedure,
Issue 9 at 28-78.
[8] Consequently, the
followings orders are issued:
1.
The
convictions on counts 1 and 2 are confirmed.
2.
The
sentences on both counts are set aside and substituted with the
following:
Count
1: Housebreaking with the intent
to steal and theft:
The
accused is sentenced to payment of a fine of R4000 or 3 years’
imprisonment, wholly suspended for a period of 5 (five)
years on
condition that the accused is not convicted of housebreaking with the
intent to steal and theft during the period of suspension.
Count
2: Contravention of s 4(b) of Act
140 of 1992:
The
accused is sentenced to 3 (three) months’ imprisonment, wholly
suspended for a period of 5 (five) years on condition that
the
accused is not convicted of contravention of s 4(a) or 4(b) of Act
140 of 1992 committed during the period of suspension.
3.
The
further orders in respect of the provisions of s 103 (2) of Act 60 of
2000 and forfeiture of the dagga in terms of s 25 of Act
140 of 1992
are confirmed.
___________
JP
DAFFUE, J
I
concur
_____________
C
REINDERS, J