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S v Mosaka (44/01) [2001] ZANWHC 34 (5 July 2001)

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CA NO : 44/01

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION


THE STATE


vs



PETER MOSAKA


R E V I E W J U D G M E N T


LEEUW J:


  1. The accused was convicted of Housebreaking with intent to steal and Theft and sentenced to Two (2) years imprisonment.


  1. The conviction is in order but I queried the fact that the sentence is too severe in view of the following:


) That the accused is a first offender;


  1. The value of the property stolen is ±R2 600.00 and it was recovered;


  1. The Learned Magistrate concedes, in response to my query, that the sentence is too severe and recommends that part of the sentence should have been suspended.


  1. I will accede to the Learned Magistrate’s request. The suspension of part of the sentence is to prevent a first offender from repeating his criminal conduct because the sentence is hanging over him. See S  v  Malgas en ander 1979 (3) SA 178 (A) at 187.


  1. I will accordingly confirm the conviction and set aside the sentence and substitute the following therefor:


“Two (2) years imprisonment, half of which is suspended for three (3) years on condition accused is not convicted of Housebreaking with intent to steal and Theft or the competent verdict thereof, committed during the period of suspension and for which he is sentenced to imprisonment without an option of a fine.”






M M LEEUW

JUDGE OF THE HIGH COURT



05 JULY 2001