REVIEW JUDGMENT
SILUNGWE, AJ
[1] Both cases listed above will, for the sake of convenience, be considered together in this judgment as
they share one legal issue in common, namely: whether it is permissible to impose a term of imprisonment, followed by a fine as an
alternative sentence. These cases, in which the presiding Magistrate was the same, have been sent for special review, as a result
of a query raised by Mtambanengwe, AJ.
[2]
Consequent upon their convictions on charges of malicious damage to property (Case 1) and of contravening
section 2(a) of act 4 of 1993 (Case 2), the accused were sentenced as follows:
Case 1:
”Six (6) months imprisonment, three (3) months suspended on condition accused pays a fine of N$700-00 the remaining
3 months suspended for five (5) years on condition accused does not within that period commit an offence of malicious damage to property.”
Case 2:
”Twelve (12) months imprisonment of which six (6) months are suspended on condition accused pays a fine of N$2000-00
by 31 October 2006. The remaining six (6) months is suspended for five (5) years on condition accused is not convicted of a similar
offence within that period of suspension.”
[3]
It is apparent from the Magistrate’s covering letter that the reason for the delay in transmitting
the review cases under consideration is that they were typed belatedly.
[4]
It is trite that a fine is always imposed with imprisonment as the alternative in the event of non-payment
of the fine, but never the other way round, as was done in casu. See S v Randwa 1961 (3) SA 545 (O). In other words, it is not permissible to impose a term of imprisonment with a fine as the alternative. This
principle is well settled and was recently confirmed by Van Niekerk, J with whom Manyarara, AJ agreed, in S v Mukuta, 2005 NR 323 at 324E–F. See also: The Guide to Sentencing in South Africa: Terblanche 1999 ed, at page 314. In any event, and
as a matter of law, section 287(1) of the Criminal Procedure Act 51 of 1977 does not provide for the imposition of imprisonment,
with a fine as an alternative to such imprisonment. It is elementary that, while non-payment of a fine is feasible and the sentenced
person thereby rendering himself or herself liable to serve an alternative term of imprisonment, it would be inconceivable, if the
converse were permissible, for such person to fail to undergo imprisonment!
[5]
In consequence, the sentences passed in both cases are impermissible and should thus be disturbed.
Accordingly, the following order is hereby made:
1.
the respective convictions in the present
cases are confirmed;
2.
the sentences imposed in both cases are set
aside; and the following sentences are substituted:
(a)
Jan Goliath: fined N$700-00, in default of payment, three months imprisonment;
(b)
Immanuel Gaingob: fined N$2000-00, in default of payment, twelve months imprisonment.
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SILUNGWE, AJ
I agree
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HEATHCOTE, AJ
.RTF of original document