S v Tlheme [2009] ZAFSHC 66 (4 June 2009)
- Citation
- [2009] ZAFSHC 66
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- C.J. Musi, Ebrahim
- Case number
- 303/2009
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- C.J. Musi, Ebrahim
- Case number
- 303/2009
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The magistrate erred by putting the Bethlehem suspended sentence into operation, as there was no evidence that its conditions had been breached. The accused's conviction at Bethlehem constituted a breach of the Welkom sentence's conditions, not the Bethlehem sentence. Therefore, only the Welkom sentence was eligible to be put into operation. The order of the magistrate was irregular and must be set aside.
Court disposition
The order putting the Bethlehem suspended sentence into operation is set aside.
Orders
- The order of the additional magistrate Welkom, in terms of which the suspended sentence mentioned in paragraph 3 of this judgment was put into operation from 16 April 2009, is set aside.
02
Material facts
Parties
The State
ApplicantS.P. Tlheme
RespondentAmounts and remedies
- Bethlehem Sentence Amount: ZAR 800
- Welkom Sentence Imprisonment (months): 3
- Bethlehem Sentence Imprisonment (months): 4
03
Procedural history
Posture
Review Application / Special Review
04
Questions and positions
Legal issues
- 01
Whether the magistrate was correct in putting the Bethlehem suspended sentence into operation.
- 02
Whether the accused breached the conditions of the Welkom or Bethlehem suspended sentences.
Party arguments
- Applicant
- The State, via the prosecutor, applied for the Bethlehem suspended sentence to be put into operation, alleging breach of its conditions.
- Respondent
- The accused's breach related to the Welkom sentence, not the Bethlehem sentence; there was no evidence of breach of the Bethlehem sentence's conditions.
05
Court’s reasoning
Legal principles
- 01
S v Tlheme [2009] ZAFSHC 66 (4 June 2009)
A suspended sentence may only be put into operation if its specific conditions are breached by the accused.
- 02
S v Tlheme [2009] ZAFSHC 66 (4 June 2009)
An order putting a suspended sentence into operation without evidence of breach of its conditions is irregular and incompetent.
06
Ratio, limits and disposition
Ratio decidendi
The magistrate erred by putting the Bethlehem suspended sentence into operation, as there was no evidence that its conditions had been breached. The accused's conviction at Bethlehem constituted a breach of the Welkom sentence's conditions, not the Bethlehem sentence. Therefore, only the Welkom sentence was eligible to be put into operation. The order of the magistrate was irregular and must be set aside.
Obiter and limits
- Magistrates must ensure that the correct suspended sentence is put into operation when its conditions are breached.
- Failure to apply the law correctly in respect of suspended sentences results in irregular and incompetent orders.
Court disposition
The order putting the Bethlehem suspended sentence into operation is set aside.
- The order of the additional magistrate Welkom, in terms of which the suspended sentence mentioned in paragraph 3 of this judgment was put into operation from 16 April 2009, is set aside.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 303/2009
In matter between:
THE
STATE
VS
S.P. TLHEME Accused
CORAM: EBRAHIM, J et C.J. MUSI, J
JUDGMENT BY: C.J. MUSI, J
_____________
DELIVERED ON: 4 June 2009
[1] This is a special review sent by the additional magistrate, Welkom. The magistrate requests that an order in terms of which a suspended sentence was put into operation be set aside.
[2] The accused was convicted at Welkom, on 07 October 2003, of attempted theft and sentenced, on 28 November 2003, to 3 (three) months imprisonment which was wholly suspended for 3(three) years on condition that the accused is not convicted of theft or attempted
theft committed during the period of suspension (the Welkom sentence).
[3] On 2 July 2004 the accused was convicted of theft, at Bethlehem magistrateâs court, and sentenced to R800, 00 or 4(four) months
imprisonment which was wholly suspended for 4(four) years on condition that he is not convicted of theft committed during the period of suspension (the Bethlehem sentence). This offence was committed on 1 July 2004.
[4] On 16 April 2009 the prosecutor applied for an order that the Bethlehem sentence be put into operation.
[5] The magistrate however ordered that the Welkom sentence be put into operation.
[6] The magistrateâs order is clearly wrong because there was no evidence that the accused breached the Bethlehem sentenceâs conditions of suspension. When he was convicted at Bethlehem, he breached the Welkom sentenceâs conditions of suspension. It is the Welkom sentence that was therefore supposed to be put into operation and not the Bethlehem sentence.
[7] The magistrateâs order putting the Bethlehem sentence into operation is incompetent and irregular. It ought to be set aside.
[7] I accordingly make the following order:
a) The order, of the additional magistrate Welkom, in terms of which the suspended sentence mentioned in paragraph 3 of this judgment, was put into operation from 16 April 2009 is set aside.
_____
C. J. MUSI, J
I concur
____
EBRAHIM, J
/ar
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