S v Moteme (82/06) [2006] ZANCHC 92 (2 June 2006)

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[2006] ZANCHC 92
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S v Moteme (82/06) [2006] ZANCHC 92 (2 June 2006)

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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape Division)
High
Court Review Case No: 82\06
Magistrate
Case No: C742\05
Date
delivered: 2006\06\02
In
the review matter of
:
THE STATE
versus
JOSEPH
MOTEME ACCUSED
Coram
:
MAJIEDT J
et
WILLIAMS
J
JUDGEMENT
ON SPECIAL REVIEW
MAJIEDT J:
This
matter has been submitted on special review. The senior magistrate
in Upington is of the view that the conditions of the suspension
of
the sentence imposed herein have not been framed with sufficient
clarity by the presiding magistrate who is no longer employed
as a
magistrate.
The
accused was convicted on his plea of guilty of assault with intent
to do grievous bodily harm. The following sentence was imposed:
“
A fine of
R500.00 or 3 months imprisonment suspended for 5 years. The fine and
the 3 months are suspended for 5 years on condition
that he is not
found guilty of an offence of this nature which involves the injuries
to the human being within the period of suspension
which is within
the period of five years.”
The
senior magistrate, in his memorandum submitting the matter on
review, is quite correct in his observation that the sentence
does
not clearly inform the accused as to what he is supposed not to do
in order to avoid serving the sentence and also that the
wording
“
committed
during the period of suspension
”
is omitted from the sentence imposed.
Our
courts have in a long line of cases, developed a requirement that
conditions attached to the suspension of sentences must be
framed
carefully and clearly, since the primary objective is that the
accused understands what he/she is required to do to avoid
the
suspended sentence being put into operation. In this Division a
useful set of guidelines had been issued in the matter of:
S
v Van Rooyen, S v Jantjies en ‘n ander 1974(3) SA 319 (NK)
which
can be summarised as follows:
a) In the conditions
reference should be made to specific offences and not to a group of
offences.
b) While
there is frequently reference made in conditions of suspension to
“
any
offence which is a competent verdict on a charge of (for example)
theft”
or “
any
offence for which (for example) theft is a competent verdict
”,
such references should be avoided since it refers to a group of
offences.
c) In
the conditions of suspension reference should only be made to those
offences which are directly related to the nature and circumstances
of the offence on which the accused had been convicted.
d) The
number of offences mentioned in the conditions of suspension should
be limited, i.e. not too many of them should be mentioned.
e) Where
possible a qualification should be attached, for example
“that
the accused is not convicted on (for example) theft committed during
the period of suspension and for which he/she is sentenced
to
imprisonment without the option of a fine or a fine not more than
Rx.”
I am
of the view that these guidelines remain extremely useful and
magistrates should be encouraged to follow them whenever sentence
is
imposed.
Where the conditions of
suspension is related to the prevention of future criminal conduct
by the accused, it should be made clear
that the conviction on an
offence committed within the period of suspension will break that
particular condition;
See in
this regard:
S v Malgas en andere 1979(3) SA 178 (A) at 181
;
State
v Xhaba 1971(1) SA 232 (T)
.
With
regard to the requirement that the conditions of suspension should
have some relation to the crime and should be stated with
precision
and be reasonable, see in general:
S v
Benn; S v Jordaan; S v Gabriels 2004(2) SACR 256 (C)
.
In the premises I am of
the view that the sentence imposed with regard to the conditions of
suspension lacks the requisite precision
and clarity as required by
our courts.
The following order is
issued:
8.1 The accused’s
conviction is confirmed.
8.2 The sentence
imposed is set aside and substituted with the following:
“
A
fine of R500.00 or 3 months imprisonment, suspended for 5 years on
condition that the accused is not convicted of an offence of
which
the infliction of bodily harm to another is an element and which is
committed during the aforementioned period of suspension.
”
8.3 The
sentence is antedated to 13 January 2006.
___________
SA MAJIEDT
JUDGE
I concur.
____________
CC WILLIAMS
JUDGE