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[2016] ZAGPPHC 385
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S v Tshabalala (A349/2016) [2016] ZAGPPHC 385 (20 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
HIGHCOURTREF.NO.
173/2016
CASE
SERIAL NO. All 11/2015
REVIEW
CASE NO. 18/2015
CASE
NO: A349/2016
In the matter
between
THE STATE
And
THEMBEKILE
TSHABALALA
REVIEW
JUDGMENT
VORSTER
AJ
1.
This
is a special review in terms of
section 304(4)
of the
Criminal
Procedure Act 51 of 1977
.
2.
The
accused was convicted of a charge fraud in the district court of
Benoni and sentenced to two years imprisonment wholly suspended
for
two years.
3.
In
terms of
section 297(1
)(b) of Act 51 of 1977 a sentence may be
wholly or partly suspended for a period not exceeding five years on
conditions referred
to in section 297(1 )(a)(i).
4.
The sentence in this case was suspended
unconditionally, which is clearly irregular. It should read “2
years imprisonment wholly suspended for 5 years
on condition that the accused is not convicted of fraud or any
attempt thereto,
which offence is committed during the time of
suspension”.
5.
Consequently
the sentence is set aside and replaced with a sentence of two years
imprisonment, wholly suspended for five years on
condition that the
accused is not convicted of fraud or any attempt thereto, which
offence is committed during the time of suspension.
VORSTER
AJ
JUDGE
OF THE HIGH COURT
I
agree
VAN
NIEKERK AJ
JUDGE
OF THE HIGH COURT