S v Tlheme [2009] ZAFSHC 66 (4 June 2009)

45 Reportability
Criminal Law
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Brief Summary

Criminal Law — Suspended sentences — Breach of conditions — Accused convicted of attempted theft and sentenced to a suspended sentence, later convicted of theft under a separate suspended sentence — Magistrate erroneously ordered the latter sentence to be put into operation despite no breach of its conditions — Court held that the first suspended sentence should have been activated due to the breach — Magistrate's order set aside as incompetent and irregular.

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South Africa: Free State High Court, Bloemfontein
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[2009] ZAFSHC 66
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S v Tlheme [2009] ZAFSHC 66 (4 June 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review
No:
303/2009
In
matter
between:
THE
STATE
VS
S.P
.
TLHEME
Accused
CORAM:
EBRAHIM, J et C.J. MUSI, J
JUDGMENT
BY
:
C.J
.
MUSI, J
____________________
_________________________________
DELIVERED
ON
:
4
June 2009
[1] This
is a special review sent by the additional magistrate, Welkom. The
magistrate requests that an order in terms of which
a suspended
sentence was put into operation be set aside.
[2] The
accused was convicted at Welkom, on 07 October 2003, of attempted
theft and sentenced, on 28 November 2003, to 3 (three)
months
imprisonment which was wholly suspended for 3(three) years on
condition that the accused is not convicted of theft or attempted

theft committed during the period of suspension (the Welkom
sentence).
[3] On
2 July 2004 the accused was convicted of theft, at Bethlehem
magistrate’s court, and sentenced to R800, 00 or 4(four) months

imprisonment which was wholly suspended for 4(four) years on
condition that he is not convicted of theft committed during the
period of suspension (the Bethlehem sentence). This offence was
committed on 1 July 2004.
[4] On
16 April 2009 the prosecutor applied for an order that the Bethlehem
sentence be put into operation.
[5] The
m
agistrate
however ordered that the Welkom sentence be put into operation.
[6] The
m
agistrate’s
order is clearly wrong because there was no evidence that the accused
breached the Bethlehem sentence’s conditions
of suspension. When he
was convicted at Bethlehem, he breached the Welkom sentence’s
conditions of suspension. It is the Welkom
sentence that was
therefore supposed to be put into operation and not the Bethlehem
sentence.
[7]
The magistrate’s order putting the Bethlehem sentence into
operation is incompetent and irregular. It ought to be set aside.
[7] I accordingly make
the following order:
a) The
order
,
of the additional magistrate Welkom, in terms of which the suspended
sentence mentioned in paragraph 3 of this judgment, was put
into
operation from 16 April 2009 is set aside.
_________________
C. J. MUSI, J
I concur
____________________
EBRAHIM, J
/
ar

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