S v Molahlehi (900/2005) [2005] ZAFSHC 101 (1 September 2005)

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[2005] ZAFSHC 101
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S v Molahlehi (900/2005) [2005] ZAFSHC 101 (1 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 900/2005
In
the case between:
THE STATE
and
TSIETSI JAMES
MOLAHLEHI
CORAM:
H.M. MUSI J
et
EBRAHIM J
JUDGEMENT:
H.M. MUSI J
_____________________________________________________
DELIVERED ON:
1 SEPTEMBER 2005
_____________________________________________________
[1] On the 11/12/2003 the
magistrate’s court at Excelsior issued an interim protection order
in terms of
Section 5(2)
of the
Domestic Violence Act 116 of 1998
in
terms of which the accused was ordered
inter
alia
not to assault the complainant, Jane Tsietsi Molahlehi. Such a
protection order was confirmed on 11/05/2004. Subsequently and on
15
th
September 2004 the accused was convicted of having assaulted the
complainant in contravention of the protection order aforesaid.
He
was sentenced as follows:
¡°
R300
or 30 days imprisonment which is wholly suspended for 3 years on
condition that the accused is not convicted of assault during
the
period of suspension or any contravention of the
Domestic Violence
Act 116/1998.”
[2] Quite clearly the
condition of suspension, namely that the accused should not be
convicted of assault during the period of suspension,
is incompetent
as the accused was not convicted of assault but rather of
contravening the provisions of
Section 17(a)
of the
Domestic Violence
Act. This
error was picked-up during a routine inspection of the
case records of the magistrate’s court concerned and the matter was
thus
referred to this court for review in terms of Section 304(4) of
the Criminal Procedure Act.
[3] In the result, the
sentence imposed is set aside and replaced with the following:
R300
or 30 days imprisonment which is wholly suspended for 3 years on
condition that the accused is not convicted of contravention
of
Section 17(a)
of the
Domestic Violence Act 116/1998 or
contravention
of any of the provisions of such Act. The sentence shall be deemed
to have been imposed on 15 September 2004.
____________
H. M. MUSI, J
I concur.
_____________
S. EBRAHIM, J
/em