Litabe v S (506/09) [2009] ZAFSHC 113 (5 November 2009)

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[2009] ZAFSHC 113
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Litabe v S (506/09) [2009] ZAFSHC 113 (5 November 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No. : 506/09
In
the review between:
THEMBENI
DESLEY LITABE
versus
THE STATE
CORAM:
MOCUMIE,
J
et
MOLOI, J
JUDGMENT BY:
MOCUMIE,
J
DELIVERED ON:
5 NOVEMBER 2009
MOCUMIE,
J
[1] This matter came
before me on review in terms of section 302 read with section 304 of
the Criminal Procedure Act, 51 of 1977,
(“the CPA”). The accused
appeared before the magistrate court Ficksburg on a charge of theft.
He pleaded not guilty but despite
his plea was convicted as charged
on the proven facts. He was sentenced as follows:
“
Fined One Thousand Rand (R1 000,00)
Three (3) months imprisonment. A further Three (3) months
imprisonment wholly suspended for
Three (3) years on condition that
the accused is not convicted of Theft committed during the period of
suspension. In terms of
Section 103(2) Act 60/2000 accused not
declare unfit.”
[2] I was of the view
that the condition for the suspension of sentence was too broad. I
sent a query to that effect. The presiding
officer has since
responded.
[3] The presiding
officer’s response reads:
“
Firstly I must concede that
although the sentence at page 47 of the transcribed record reads on
condition that you are not again
convicted of an offence of which
dishonesty is an element, committed during the period of suspension,
this was a slipping of the
tongue see J15 of the written record as
well as J4.”
[4] The concession which
the presiding officer makes, is neither here nor there because the
fact of the matter is that the sentence
that was pronounced or that
the accused was informed about is as reflected on page 47 of the
transcribed record. As it stands
it is too broad and requires to be
corrected.
[5] The second leg of the
presiding officer’s response is not so clear as the correction on
the wording that will be done will
cater for the conditions to be set
in such circumstances.
[6] In the circumstances
I make the following order:
ORDER:
The conviction is
confirmed.
The sentence imposed
is set aside and altered to read:
“
R1 000,00 (one
thousand rand) or 3 (three) months imprisonment. In addition a
further 3 (three) months imprisonment wholly suspended
for 5 (five)
years on condition that the accused is not convicted of theft or
attempt thereto committed during the period of suspension.”
___
_______________
B
.C.
MOCUMIE, J
I
concur
.
__
__________
K.J.
MOLOI
,
J
/sp