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[2016] ZAFSHC 50
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S v Selai (200/2015) [2016] ZAFSHC 50 (23 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: 200/2015
In
the matter between:
THE
STATE
Applicant
and
ASELO
SELAI
Respondent
JUDGMENT
BY:
HINXA,
AJ
DELIVERED
ON:
23
MARCH 2016
HINXA
AJ:
[1]
This matter served before this court on special review in terms of
Section 304 (4) of the Criminal Procedure Act 51 of 1977
(the CPA).
[2]
The following query was raised in the following terms on 12 October
2015,
“
The
record as was forwarded to the registrar is incomplete as it starts
at the tail end of the proceedings. You are hereby requested
to
reconstruct the record and forward a more comprehensive record to
this office”.
[3]
The matter served before me on 28 January 2016. On perusing the
record it transpired that it was received by the Clerk of the
Court
Welkom on 20 October 2015. It is not clear whether the record ever
found its way to the Presiding Officer. It suffices to
state that it
was sent back without any reconstruction highlighted in the query
having been heeded. It is equally mysterious as
to who actually
returned it.
[4]
With a view to expediting disposal hereof, I deemed it discreet to
telephonically contact the Cluster Head (Ms Motlekar) and
explain
what was precisely expected.
[5]
Pursuant thereto, she did not only ensure that the record was
urgently fetched from the High Court but also that the query was
meticulously and swiftly attended to and the record hastily returned.
I am indebted to her for the promptness with which she handled
this
matter. The Senior Magistrate from her office (Mr. Ferreira) is of
the view that the sentence falls to be set aside as the
offence was
committed after the expiry of the period of suspension.
[6]
At this juncture I consider it apposite to deal with the merits of
the case:
6.1
The
accused, being accused 4 of the seven accused, was convicted on 5
March 2010 in the district court at Welkom on a charge of
contravening Section 1(1)(a) of the Trespass Act, Act 6 of 1959 (“the
Trespass Act”).He was then sentenced as follows:
“
Fined
(R2000.00) two thousand rand or (6) six months imprisonment. Further
each sentence to (18) eighteen months imprisonment, sentence
wholly
suspended for a period of (5) five years on condition that accused is
not found guilty again of contravention of section
1 (1) of the
Trespass Act, Act 6 of 1959 at the mine property committed during the
period of suspension”.
6.2
The
same accused being accused 3 in Case A 2185/15 was again convicted on
16 July 2015 in the district court at Welkom on
inter
alia
a charge of contravening section 1 (1)(a) of the Trespass Act. The
following sentence was imposed,
“
(2)
Two years imprisonment sentence is wholly suspended for a period of
(5) five years on condition that the accused is not found
guilty of
contravention of section 1 (1) of the Trespass Act, Act 6 of 1969 at
the mine premises or property committed during the
period of
suspension”.
6.3
It
bears mentioning that this offence was committed on 25 June 2015. The
accused was subsequently brought before the court on 24
July 2015 for
the suspended sentence imposed on 5 March 2010 to be put into
operation. He was legally represented. The attorney
conceded that the
suspension conditions were breached and requested that the suspended
sentence imposed on 5 March 2010 be further
suspended. The presiding
magistrate then further suspended the 18 months imprisonment imposed
on 5 March 2010 in Case no A 925/10
for another period of 5 years.
[7]
Before dealing with the ground for this special review, I deem it apt
to first consider yet another ground which would still
render the
sentence inappropriate:
7.1
It
is trite exposition of our law that before the court can grant a
further suspension it must be satisfied that: (a) the accused
has
through the circumstances beyond his/her control been unable to
comply with the condition of the suspended sentence imposed.
Circumstances beyond control have been described as occurrences or
reasons which were not brought about by the accused or have
no nexus
with his/her conduct or failure to act (
S
v Gaika
1971 (I) SA 231 at 232 A). Of importance, the courts have cautioned
against imposing a condition of a suspended sentence of such
a nature
that the sentence can be brought into operation by an event beyond
the accused’s control (See
S
v Gaika
supra
at 232 A-B).
Furthermore,
the court may also, (b) for some other good or sufficient reason
further suspend the sentence. Other good or sufficient
grounds are
grounds other than circumstances beyond the accused’s control
such as: where an accused person’s sentence
of imprisonment is
suspended for a period on condition that he pays a sum of, say,
R10,000 by way of compensation within a specified
time, he may fail
to pay the sum and prefer to go to prison because he considers that,
although he has the money to pay, he must
keep it for the purpose of
meeting other obligations. If it should happen that after the period
for payment has expired he should
suddenly find himself, whilst
serving the suspended sentence of imprisonment which has been duly
brought into operation, an unexpected
heir to great wealth, it seems
distinctly absurd that he should not be able to obtain a further
period of suspension, notwithstanding
that the sentence has been put
into force, to enable him to put his hands upon the wealth to which
he has become the unexpected
heir and pay the R10,000, which it was
all along intended that he should be forced to pay by having hanging
over him a sentence
of imprisonment. (See
Berg
v Regional Magistrate, Southern Transvaal and Another
1956 (2) SA 676
(T) at 678 D-H).
7.2
The
presence of either of the two grounds alluded to at paragraph 7.1
(a-b) above will suffice to justify a further suspension (See
S
v Dina
1962 (2) SA 464
(N) at 466 C-D).
7.3
The
onus on a preponderance of probabilities rests on the accused to show
that a further suspension is warranted. (See Hiemstra’s
Criminal Procedure: Chapter 28 page 85).
[8]
I revert now to the facts of the matter under review. Having
considered the conspectus of the evidence, there is not a shred
of
evidence pointing even in the remote to any of the two grounds.
Accused’s legal representative only stated that the accused
has
two (2) minor children and still executes his fatherly duties.
Compounding the matter is the fact that the accused was serving
a
prison term and it is incomprehensible how he was executing his
fatherly duties to deserve a further suspension. It follows from
this
that the magistrate did not apply his mind to the questions which the
law required him to consider viz. the existence or non-existence
of
any of the aforestated grounds.
[9]
I come next to the ground raised by the Senior Magistrate. It is
common cause that the initial suspended sentence was meted
out on 5
March 2010; it was suspended for five (5) years; and the accused only
committed the subsequent offence on 25 June 2015
i.e. after the
expiry of five (5) years. Accordingly, the offence for which the
accused was convicted on 16 July 2015 in case no
A 2185/15 was
committed outside the period of suspension. It follows that the order
bringing into operation the suspended sentence
is inappropriate and
falls to be set aside.
[10]
The aforesaid order is accordingly set aside. The sentence imposed on
16 July 2015 appears to be in accordance with justice.
It is
accordingly confirmed.
_____________
M.D
HINXA, AJ
I
concur
__
B.C.
MOCUMIE, J