S v Modisane (151/05) [2005] ZANWHC 107 (29 December 2005)
The court held that the condition of suspension imposed by the magistrate was defective because it did not relate specifically to the offence of housebreaking with intent to steal and theft, and failed to make clear that a conviction for such an offence during the period of suspension would break the condition. The...
Source-derived case information.
- Citation
- [2005] ZANWHC 107
- Parties
- Applicant: The State; Respondent: Michael Modisane
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 151/05
- Procedural Posture
- Review Application / Review of Sentence Imposed by Magistrate
- Outcome
- Conviction confirmed; sentence set aside and substituted with a wholly suspended sentence subject to a clarified condition.
- Judges
- R D Hendricks
- Legal Topics
- Suspended Sentence Conditions, Housebreaking and Theft, Dishonesty Element
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Applicant
Michael Modisane
Respondent
Procedural Posture
Review Application / Review of Sentence Imposed by Magistrate
Legal Issues
- 1 Whether the condition of suspension attached to the sentence was appropriate and sufficiently clear.
- 2 Whether the reference to 'an offence of which dishonesty is an element' was correct given the conviction for housebreaking with intent to steal and theft.
- 3 Whether the condition should specify that a conviction during the period of suspension breaks the suspension.
Ratio Decidendi
The court held that the condition of suspension imposed by the magistrate was defective because it did not relate specifically to the offence of housebreaking with intent to steal and theft, and failed to make clear that a conviction for such an offence during the period of suspension would break the condition. The court confirmed the conviction but set aside the sentence and substituted it with a new sentence, wholly suspended for three years on condition that the accused is not again convicted of housebreaking with intent to steal and theft committed during the period of suspension. The order was to be communicated to the accused to ensure he understood the revised condition.
Court Disposition
Conviction confirmed; sentence set aside and substituted with a wholly suspended sentence subject to a clarified condition.
Orders
- The conviction of the accused on a count of housebreaking with intent to steal and theft is confirmed.
- The sentence imposed on the accused is set aside and substituted with: Two thousand rand (R2 000-00) or one (1) year imprisonment, wholly suspended for three (3) years on condition that the accused is not again convicted of housebreaking with intent to steal and theft committed during the period of suspension.
Full Case Text
Judgment text and source record
23 paragraphs
CA NO: 151/05
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
THE STATE
and
MICHAEL MODISANE
REVIEW JUDGMENT
HENDRICKS J:
[1] The accused is convicted in the district court, Lehurutshe, on a charge of housebreaking with the intent to steal and theft following upon his plea of guilty. He was sentenced to:-
âone year imprisonment or two thousand rand, the whole sentence is suspended for a period of three years on condition that accused is not again convicted of an offence of which dishonesty is an element.â
[2] When this matter came on review before Zwiegelaar AJ, she requested reasons for the impositioning of such a condition of suspension. In particular, reference was made to the case of S v Malgas and Others 1979(3) SA 178 A, in which it was held that where a condition of suspension is related to the prevention of criminal conduct by the accused, it should be made clear that the conviction of an offence committed within the period of suspension will break the condition.
It was also queried as to why reference is made to âan offence of which dishonesty is an elementâ as a condition of suspension where the accused was convicted of housebreaking (with the intent to steal and theft).
[3] The Magistrate conceded that the condition of suspension is not in order. The condition of suspension only deals with the element of dishonesty and not with housebreaking and it doesnât state that if another offence is committed during the period of suspension, it will break the condition.
[4] I am of the view that this concession by the Magistrate is well made. No prejudice will be suffered by the accused if the condition of suspension is altered as long as I t is communicated to him.
[5] In the result, I make the following order:-
[i] the conviction of the accused on a count of housebreaking with intent to steal and theft is confirmed;
[ii] the sentence imposed on the accused is set aside and substituted with the following:-
âTwo thousand rand (R2 000-00) or one (1) year imprisonment which is wholly suspended for a period of three (3) years on condition that the accused is not again convicted of housebreaking with the intent to steal and theft committed during the period of suspension.â
[iii] this order must be communicated to the accused.
R D HENDRICKS
JUDGE OF THE HIGH COURT
29 DECEMBER 2005