S v Massdorp (139/2006) [2006] ZANCHC 43 (18 August 2006)

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[2006] ZANCHC 43
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S v Massdorp (139/2006) [2006] ZANCHC 43 (18 August 2006)

IN THE HIGH COURT OF
SOUTH-AFRICA
(NORTHERN CAPE
DIVISION)
KIMBERLEY
CASE
NO.:139/2006
DATE:
18-08-2006
In the Judgment of:
THE
STATE
And
SIMON
MAASDORP
CORAM:
WILLIAMS
J et OLIVIER J
J
U D G M E N T
WILLIAMS
J:
1. The accused in this
matter pleaded guilty to and was convicted on a charge of assault
with intent to do grievous bodily harm.
He was sentenced as follows:
“
R350,
00 or 3 months imprisonment suspended for 5 years on condition that
you are not found guilty of committing similar offences
or injury to
a person during the period of suspension.”
2. Since the conditions
of suspension do not conform to the degree of clarity required, the
senior magistrate, Upington, submitted
this matter for special review
– the presiding magistrate not being available for comment since
her contract has expired.
3. One of
the requirements for a condition of suspension is that it be related
to the offence in question and be certain and clear.
The accused
must be able to know exactly what conduct may lead to his having to
serve the sentence.
In
casu
the
condition of suspension that the accused not be found guilty of
committing
“similar
offences or injury to a person”
is framed far too widely and may cause confusion as to what
particular conduct the accused should refrain from during the period
of suspension.
4. Furthermore,
a condition of suspension aimed at the prevention of criminal conduct
should be phrased in such a way that it is clear
that the conviction
of an
offence
committed within the period of suspension
will break the condition. The sentence as it stands is ambiguous in
this respect since it is not clear whether the prohibition relates
to
the conviction or commission of a particular offence during the
period of suspension.
For the reasons stated
above the following orders are made.
a) The conviction is
confirmed.
b) The sentence is set
aside and replaced with the following:
“
R350,
00 or 3 months imprisonment which is suspended for 5 years on
condition that the accused is not convicted of assault with intent
to
do grievous bodily harm committed during the period of suspension.”
______________________
C.C
WILLIAMS
JUDGE
I concur.
______________________
C.J
OLIVIER
JUDGE