S v Charles, S v Witbooi (41/2007, 43/2007) [2007] ZANCHC 29 (4 May 2007)

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[2007] ZANCHC 29
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S v Charles, S v Witbooi (41/2007, 43/2007) [2007] ZANCHC 29 (4 May 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER: 43/2007
41/2007
DATE
DELIVERED: 04-05-2007
In
the case of:
THE STATE
Vs.
JOHNSON
CHARLES
And
THE
STATE
Vs.
JOHANNES
WITBOOI
CORAM: WILLIAMS J et OLIVIER J
JUDGMENT
ON SPECIAL REVIEW
______________________________________________________________________________________
WILLIAMS
J:
1. The accused in both these matters were convicted of contravening
section 31(1) of Act 99 of 1998 in that they failed to pay
maintenance
as ordered and were sentenced as follows:
1.1 Case
no F208/04, S v Johnson Charles;
“
3
months imprisonment suspended for five years on condition that he is
not found guilty for contravening s31 Act 99/98 with the condition
that he pays R100 towards arrears of R1440, 00 from 02-01-2006 until
arrears is settled.”
1.2
Case no F72/05, S v Johannes Witbooi;
“
3
months imprisonment suspended for five years on condition that he is
not found guilty for contravening s31 Act 99/98 with the condition
that he pays R200 towards arrears of R3600, 00 on a monthly basis
commencing from 01-08-2005.”
2. The senior magistrate, Upington remitted these matters on special
review to this court, citing with regard to both matters the
following reason:
“
The
sentence is worded incorrectly and as such of no value as an
essential averment committed during period of suspension has been
omitted after
“contravening
sect. 31 of Act 99/1998.”
3. With regard to case no F208.04 a further reason
is stated as:
“
The
condition pertaining to the repayment of R100 towards arrears is open
ended as it does not contain any particulars as to the fact
that the
R100 is payable in installments and within which periods.”
4. The senior magistrate is correct that the conditions of suspension
of these sentences are inappropriate in that they are not framed
with
the precision and clarity required to enable the accused to
reasonably comply therewith. The sentences therefore need to be
corrected.
The following orders
are made:
a) In case no F208/04, s v Johnson Charles, the sentence imposed
is corrected to read:
“
Three
months imprisonment suspended for five years on condition that the
accused is not found guilty of contravening sec 31 of Act
99 of 1998
committed during the period of suspension, and on the further
condition that he pays the arrear maintenance of R1440,
00 in monthly
instalments of R100, 00, the first payment to be made on or before 2
January 2006 and thereafter on or before the 2
nd
day of every consecutive month.”
b) In case no F 27/05, S v Johannes Witbooi, the sentence imposed
is corrected to read:
“
Three
months imprisonment suspended for five years on condition that the
accused is not found guilty of contravening sec 31 of Act
99 of 1998
committed during the period of suspension, and on the further
condition that he pays the arrear maintenance of R3600,
00 in monthly
instalments of R200, 00, the first payment to be made on or before 1
August 2005 and thereafter on or before the 2
nd
day of each consecutive month.”
______________________
C C WILLIAMS
JUDGE
NORTHERN CAPE DIVISION
I concur
_______________________
C J OLIVIER
JUDGE
NORTHERN CAPE DIVISION