S v Mawelewele and Another (106/2001) [2001] ZANWHC 46 (1 November 2001)

CA NO. 106/2001

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

ANTON MAWELEWELE & ANOTHER

_______________

REVIEW

JUDGMENT

MOGOENG J.

[1] The accused were correctly convicted of theft of a cow in contravention of the Stock Theft Act No. 57 of 1959. Pursuant thereto, the following sentence was imposed:

“Each accused is sentenced to twelve (12) months imprisonment which is wholly suspended for five year on condition that accused are not convicted subject to the provisions of stock theft Act 57/59 and in respect of which he shall be sentenced to an imprisonment without a fine. The accused are further ordered to compensate complainant to the amount of R1600. Each accused to pay R800 payable in monthly instalments of R250 with effect from the 30/6/01 until the whole amount is paid in fine.” [2] Khumalo J queried the correctness of the wording of the condition of suspension as well as the competency of the Magistrate to order compensation. The learned Magistrate agreed that he made some errors but went on to suggest that the compensation order be confirmed since the accused have already paid R1 120.00 to the complainant in satisfaction of the compensation order. [3] I have considered the evidence, the authorities, including S v TLAME 1982 (4) SA 319 (B), the query and the Magistrate’s response. Not all the steps, which should be taken when a compensation order is to be made, were taken. However, I am satisfied that there has been substantial compliance with the requirements. When the complainant gave evidence he gave evidence relating to the value of his cow, and, as required by the law, it was only after conviction that the

application for compensation was made. The accused themselves also asked the Court to make an order for compensation, and the amount that each of them undertook to pay per month is at least twice higher than the amount that the Court ordered them to pay per month until the debt is liquidated. They, therefore, do not stand to suffer any prejudice whatsoever. I am satisfied that it is in the interests of justice that a compensation order was made. The compensation order will essentially be confirmed but will be rephrased in such a way as to comply with the applicable authorities.

“Each accused is sentenced to twelve (12) months imprisonment which is wholly suspended for five year on condition that accused are not convicted subject to the provisions of stock theft Act 57/59 and in respect of which he shall be sentenced to an imprisonment without a fine. The accused are further ordered to compensate complainant to the amount of R1600. Each accused to pay R800 payable in monthly instalments of R250 with effect from the 30/6/01 until the whole amount is paid in fine.”

[2] Khumalo J queried the correctness of the wording of the condition of suspension as well as the competency of the Magistrate to order compensation. The learned Magistrate agreed that he made some errors but went on to suggest that the compensation order be confirmed since the accused have already paid R1 120.00 to the complainant in satisfaction of the compensation order.

[3] I have considered the evidence, the authorities, including S v TLAME 1982 (4) SA 319 (B), the query and the Magistrate’s response. Not all the steps, which should be taken when a compensation order is to be made, were taken. However, I am satisfied that there has been substantial compliance with the requirements. When the complainant gave evidence he gave evidence relating to the value of his cow, and, as required by the law, it was only after conviction that the

application for compensation was made. The accused themselves also asked the Court to make an order for compensation, and the amount that each of them undertook to pay per month is at least twice higher than the amount that the Court ordered them to pay per month until the debt is liquidated. They, therefore, do not stand to suffer any prejudice whatsoever. I am satisfied that it is in the interests of justice that a compensation order was made. The compensation order will essentially be confirmed but will be rephrased in such a way as to comply with the applicable authorities.

[4] Accordingly, the conviction is confirmed but the sentence is set aside and substituted with the following: “Twelve months imprisonment which is wholly suspended for three years on condition that each accused: (i) is not convicted of theft of livestock, committed during the period of suspension and in respect of which he is sentenced to imprisonment without the option of a fine; and (ii) pays R800.00 to the complainant at the rate of R250.00 per month until the order is fully satisfied.” This order is antedated to 09 May 2001 in so far as this may be necessary. M.T.R.

MOGOENG

REVIEWING

JUDGE I agree M.M.

LEEUW

JUDGE OF

THE HIGH COURT DATED: 01 NOVEMBER 2001

[4] Accordingly, the conviction is confirmed but the sentence is set aside and substituted with the following:

“Twelve months imprisonment which is wholly suspended for three years on condition that each accused:

(i) is not convicted of theft of livestock, committed during the period of suspension and in respect of which he is sentenced to imprisonment without the option of a fine; and

(ii) pays R800.00 to the complainant at the rate of R250.00 per month until the order is fully satisfied.”

This order is antedated to 09 May 2001 in so far as this may be necessary.

M.T.R.

MOGOENG

REVIEWING

JUDGE

I agree

M.M.

LEEUW

JUDGE OF

THE HIGH COURT

DATED: 01 NOVEMBER 2001

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