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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:-

“one 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.”

[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 “an offence of which dishonesty is an element” 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 doesn’t 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:-

“Two 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.”

[iii] this order must be communicated to the accused.

R D HENDRICKS

JUDGE OF THE HIGH COURT

29 DECEMBER 2005

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