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CA 108/2002

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

JOSEPH NKUNA

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REVIEW JUDGMENT

_____________________________________________________

PISTOR AJ:

Introduction:

The accused in this matter was found guilty of a contravention of section 39(1)(l) of the Arms and Ammunition Act, 1969, (Act 75 of 1969 – hereinafter referred to as the Act.) in that he handled a firearm in a negligent manner. (The reference to section 39(1)(i) on form J4 under cover of which the present case was submitted to this Court, is incorrect.)

The relevant part of the sentence reads as follows:

“Two thousand rand or twelve months imprisonment. One thousand rand of which is suspended for three years on condition…….”

The matter was referred to the Registrar of this Court as an automatic Review.

On 15 May 2002 a Judge of this Court (Pako AJ) directed the following query to the presiding Magistrate:

“1. In terms of which provision did the magistrate suspend part of the fine only and did not couple that suspended fine with a term of imprisonment?

2. Is the sentence which the magistrate imposed not too lenient in view of the fact that an innocent child was seriously injured as a result of gross negligence on the part of the accused. Was it also necessary to suspend part of the sentence

2. Did the accused pay the fine or not? The J4 form does not give any indication as to whether the fine was paid or not.”

The matter has now again been put before us for further consideration together with the Magistrate’s reasons.

Advocate Maboane of the office of the Director of Public Prosecutions has benefited us with a helpful written opinion on the issues that have to be considered and with which I now deal.

Was the sentence not too lenient:

The facts accepted by the learned presiding Magistrate, in a nutshell, are the following. The accused is a member of the South African Police Services. On the day of the incident he was in possession of his service pistol which he then handed to a young child with the purpose of putting it in a safe place since he (the accused) wanted to consume liquor and he did not want to retain possession of the pistol whilst he was drinking. However, the weapon was clearly not made safe and when it was handed to the young child and still in the hands of the child a shot went off as a result of which the bullet hit another child (six years of age) that was nearby. The latter child was seriously injured.

The above stated facts, in my mind, required a stiff sentence. The fact that the accused was a Policeman who, on his own evidence, was trained in the handling of firearms, is a further factor in favour of a stiff sentence.

The relevant penal provisions of the Act are contained in section 39(2)(d). In terms of the latter section a fine not exceeding R4 000-00 or imprisonment for a period not exceeding one year or both such fine and such imprisonment can be imposed. The legislature has therefore provided that a period of imprisonment without the option of a fine can be imposed for a contravention of the section in respect of which the accused was found guilty.

In my view a heavier sentence than the one imposed by the presiding Magistrate would have been appropriate. However, that is not the test.

The Magistrate has given sound reasons for his decision to suspend part of the sentence and in my view it cannot be said that he has not exercised his discretion judicially.

The sentence is also not so shockingly disproportionate to what this Court would have imposed that this Court would be entitled to interfere.

Furthermore this Court does not generally have the power to increase a sentence on review and in my view this is not one of the exceptional cases in which it is legally permissible for this Court to increase a sentence on review. (See in this regard the remarks of Mogoeng J (as he then was) in the yet unreported matter of The State vs Enogh Modukanele, review case nr. 16/2002 in this court, which judgment is dated 28 March 2002.)

I conclude by saying: yes, the sentence is on the lenient side but, for the reasons stated above, I would not interfere with it.

Was the suspension of part of the fine without the suspension of a corresponding part of the period of imprisonment proper?

In his reasons the Magistrate referred to sections 297(1)(b) and

to section 297(5) of the Criminal Procedure Act, 1977 (Act 51

of 1977 – hereinafter referred to as the Code). The Magistrate

indicated that the said sections of the code “were considered when

I suspended the portion of the fine only” but he has not stated on

which of the aforesaid provisions he relied for the suspension of

payment of part of the fine only. The question therefore arises:

“does any one of the said sections authorise the suspension of the payment of a fine ( or for that matter, any part thereof) on the conditions set out in the sentence imposed by the magistrate and if so, is it necessary to suspend a corresponding portion of the period of imprisonment in terms of that section?”

In my view each of the said provisions has its own purpose and should be interpreted accordingly. I now deal with them.

Section 297(5):

Section 297(5) of the Code provides as follows:

“Where a Court imposes a fine, the Court may suspend the payment thereof:

1. until the expiration of a period not exceeding five years; or

2. on condition that the fine is paid over a period not exceeding five years in instalments and at intervals determent by the Court.”

In my view this section was not intended to be used for the suspension of a sentence or of any part thereof but was enacted to assist an accused where he or she is not financially in a position to pay the fine or part thereof at the time of sentence and where there are reasonable prospects that he or she may in the future be in a position to pay the fine or to pay it in instalments (i.e. the so called deferred fine). In such event the trial Court will normally conduct an investigation as to the manner and the time by which the accused can pay the fine and will then (the facts justifying a deferred fine) suspend the payment thereof on conditions provided for in the section namely:

1. payment on a specified date in the future (until the

expiration of a period) but within five years (sub-section (a)).

2. payment in instalments and at intervals determent by the Court but for no longer than five years (sub-section (b)).

See, inter alia, S v Webster 1992(2) SACR 477(N) where such procedure was recommended in respect of an accused who was not in a position to pay his fine at the time of the conclusion of his trial.

In such case any period of imprisonment that might have been imposed as an alternative to the fine will not become operative pending the payment of the fine. It is therefore not necessary to also suspend such a period of imprisonment or any part thereof. Should the fine (or any portion thereof) not be paid:

1. payment thereof may either be further suspended in terms of section 297(7)(c) of the code which, in so far as it is relevant, provides as follows:

“(7) A court which has-

1. ……..

(b) ……..

(c) suspended the payment of a fine under subsection (5),

…………may, …….. further suspend the …..payment of a fine, …. subject to any existing condition or such further conditions as could have been imposed at the time of such ….suspension.” or

(b) The sentence may be put into operation in terms of section 297(9), of which the relevant part reads as follows:

“(9) (a) If any condition imposed under this section is not complied with, the person concerned may upon the order of any court, …. be arrested or detained and, where the condition in question-

(i) …….

(ii) was imposed under subsection (1) (b), (4) or (5), be brought before the court which suspended ……the payment of the fine, or any court of equal or superior jurisdiction,

and such court,…… may then, in the case of subparagraph (i)….., or, in the case of subparagraph (ii), put into operation the sentence which was suspended.”

Once the sentence is put into operation, the provisions of section 33 of the Correctional Services Act, 1959 (Act 8 of 1959) apply. The relevant portions thereof read as follows:

“33 Imprisonment in default of payment of fine

(1) Any imprisonment which is imposed by any court in default of payment of a fine shall, prior to the expiration thereof, terminate whenever that fine is paid or is lawfully levied under the process of any law authorizing the levy of the fine.

(2) (a) If any part of the fine is paid or levied before the expiry of any imprisonment such as referred to in subsection (1), the period of imprisonment shall be reduced by a number of days bearing as nearly as possible the same proportion to the period of imprisonment as the sum so paid and levied bears to the amount of the fine.

(b) …..

(3) ………”

In S v MAKGATO 1989 (1) SA 719 (W) at 720 J to 721B Goldstein, J considered the following sentence:

“'n Boete van R100; ingevolge art 297(5)(b) van Wet 51 van 1977 word die betaling van die boete opgeskort op voorwaarde dat die beskuldigde die bedrag as volg betaal:

R50 voor of op 30 Januarie 1988 en R50 voor of op 28 Februarie 1988 of, by wanbetaling, twee maande gevangenisstraf.”

The learned judge then remarked as follows:

“Die effek van so 'n vonnis sou kortliks die volgende wees: wanbetaling van enige paaiement sou die volle balans onmiddellik betaalbaar maak (in ooreenstemming met die bewoording van art 297(5)(b) ) en die gevangenisstraf (of 'n proporsionele gedeelte daarvan) in werking stel.”

I find myself in respectful disagreement with the latter portion of that judgment. In my view, and irrespective of the wording of the sentence, such a period of imprisonment will not come into operation automatically on a failure to pay the fine or any part thereof. Such sentence will have to be dealt with in terms of either the said section 297(7) or in terms of section 297(9) of the Code. Had it been otherwise, the said sections would have been rendered nugatory by the wording of the order, which in my view could not have been the intention of the legislature.

In my view the learned Magistrate, in the present case, did not have a deferred fine in mind when he directed that part of the fine “be suspended” because:

1. In his reasons he indicated that:

“The whole purpose of a suspended sentence being to have a deterrent effect on the accused.”

2. After the sentence has been imposed the accused in fact applied for a deferred fine, since he had not received his pay. The application for a deferred fine was dismissed by the magistrate

“due to seriousness of offence.”

(c) The magistrate did not enquire as to whether the accused was in a position to pay the fine or any part thereof.

The magistrate must therefore have intended to act in terms of section 297(1)(b) of the code.

297(1)(b) of the code:

The latter section provides that the whole or any part of a sentence may be suspended. Does the latter section not expressly provide for a suspension of that part of the sentence that relates to the fine only?

On my understanding of the Code it does not forbid in express terms the suspension of that part of the sentence that relates to the fine only where imprisonment was imposed as an alternative to the payment of a fine. However, in my view, the clear intention of the legislator must have been to provide that, whenever a period of imprisonment has been imposed as an alternative to the payment of a fine and it is the intention to suspend part of the sentence in terms of section 297(1)(b), a portion of the fine as well as a corresponding portion of the period of imprisonment should be suspended.

Once a period of imprisonment has been imposed as an alternative for a fine, there comes into existence a direct relationship between the proportionality of the imprisonment and the amount of the fine.

In S v Moyi 1994 (2) SACR 408(T) a Magistrate imposed a fine with an alternative of imprisonment and suspended part of the period of imprisonment without suspending a corresponding part of the fine. Strydom J considered the sentence on review and, at 409(B-D) remarked as follows:

“Die vonnis is nie boete en gevangenisstraf nie, maar boete of gevangenisstraf. Die gevangenisstraf is nie bykomstig tot die boete nie, maar ‘n keuse wat gelaat is. Beskuldigde kan kies om te betaal en nie gevangenisstraf uit the dien nie of andersom. Genvangenisstraf wat by wanbetaling van ‘n boete opgele is, eindig voor die verstyking daarvan wanneer die boete betaal is. Totdat die volle som betaal is, word dgevangenisstraf uitgedien. Indien ‘n gedeelte van die boete betaal word voor verstryking van die gevangenisstraf word die tydperk verkort deur ‘n aantal dae wat so na as moontlik in dieselfde verhouding staan tot die tydperk van gevangenisstraf as waaraan die betaalde bedrag tot die bedrag van die boete staan. ……………. ‘n gedeelte van die gevangenisstraf kan nie opgeskort word nie tensy ‘n gedeelte van die boete opgeskort word.”

Strydom J referred to the aforesaid section 33 of the Correctional Services Act, 1959 (Act 8 of 1959).

It is clear from the wording of the latter section (quoted above) that, once a period of imprisonment has been imposed as an alternative to a fine, there is created a fixed relationship between the proportionality of the period of imprisonment and of the fine imposed. That relationship remains in existence throughout. Where part of the period of imprisonment is therefore suspended without the suspension of a corresponding part of the fine it would be impossible for the prison authorities to implement the sentence. Similarly where a part of the fine is suspended without the suspension of a corresponding portion of the period of imprisonment uncertainty exists as to what portion of the period of imprisonment must be served by the accused. The facts of the present matter demonstrates this difficulty clearly. The accused did not pay the unsuspended portion of the fine. No portion of the period of imprisonment was suspended. Does the accused now have to serve the entire period of imprisonment or only part thereof and if the latter, then what part? If the accused now has to serve the entire period of imprisonment, then is there any purpose in giving him the benefit of a suspended sentence? Furthermore, should, in such event, the suspended portion of the sentence (in casu part of the fine) be put into operation at some future stage and the accused at that stage is not in a position to pay such fine, then a period of imprisonment, as an alternative, will not be in place to be served by the accused on default of payment of the fine. In such event the suspended sentence will be without any effect at all.

Therefore, in my view, it is not proper to suspend part of the fine without suspending a corresponding portion of the period of imprisonment.

THE CONSIDERATION OF A DEFERRED FINE:

I believe it to be necessary to make a few remarks about the magistrate’s refusal of the application for a deferred fine.

The Magistrate did not enquire as to whether the accused was in a position to pay the fine or any part thereof. The application for a deferred fine was dismissed

“due to seriousness of offence.”

Pursuant to the query of Pako AJ the Magistrate in fact indicated that the accused had not paid any part of the fine by the time that the query was received by the Magistrate.

If the facts of a case justify that the accused be afforded the option of a fine, then, in my view, no purpose is served by refusing the accused an opportunity of paying that fine “because of the seriousness of the offence” if he is in a position to pay the fine in instalments. The seriousness of the offence should have been taken into account when the Magistrate decided to impose a fine and should not have played a role at the stage when an application for a deferred fine was considered.

In this regard the following words of Hiemstra, CJ in S v Lekgoale and Another 1983 (2) SA 175 (B) on 176 C are apposite:

“In general the following broad guidelines should be observed when the court considers the imposition of a fine. In the first place the court should consider whether a fine comes into the picture at all. The option of a fine is a concession to the accused and it is supposed to carry less of a stigma than outright imprisonment. A man who committed a crime of serious violence or who has previous convictions for similar offences would normally not qualify for a fine.

In general the option of a fine is given where the offence is not one of such gravity that imprisonment seems to be the only appropriate sentence.

When an option is granted, it is desirable that it should be a real option, that is to say the fine must be such that it is reasonably possible for the accused to pay it, either from (i) cash resources of his own; or (ii) such money as he can borrow; (iii) by the realisation of such assets as he may possess. The court should therefore inquire about the accused's ability to pay……unless the circumstances are quite obvious."

In my view the Magistrate misdirected himself when he refused the application for a deferred fine “due to seriousness of offence” and without any inquiry with regard to the accused’s ability to pay a fine.

The decision to refuse the application for a deferred fine would, in the normal cause of events have been set aside, but at this stage such an order will be of academic value only.

ACTION BY EMPLOYER:

The accused is a policeman. In my view the negligence of the accused in respect of which he was found guilty may justify an investigation by his employer (the Department of Police) as to the capability of the accused to carry a firearm as a Policeman and as to whether disciplinary steps should not be taken by his employer against the accused. I do not know whether this matter has been brought to the notice of his employer. If not, it should in my view be done.

I would therefore make the following order:

(1) The sentence imposed by the Magistrate is set aside and replaced by the following:

“Two thousand rand or twelve months imprisonment of which one thousand rand or six months imprisonment is suspended for three years on condition that the accused is not convicted of a contravention of section 39(1)(l) of Act 75 of 1969 or any offence relating to the negligent handling of firearms, committed during the period of suspension.”

(2) The registrar is directed to make a copy of this judgment available to the Regional Commissioner of police in the North West Province.

J H F PISTOR

ACTING JUDGE OF THE HIGH COURT

I agree.

H N HENDLER

JUDGE OF THE HIGH COURT

14 NOVEMBER 2002

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