Court name
High Court Main Division
Case number
CRIMINAL 9 of 2014
Case name
S v Brandt
Media neutral citation
[2014] NAHCMD 70
Judge
Parker AJ
Unengu AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: CR 9/2014




DATE:
04 MARCH 2014





NOT
REPORTABLE





In the matter
between:








THE
STATE........................................................APPLICANT





And





JOSEF
BRANDT..........................................RESPONDENT








(HIGH COURT
REVIEW CASE NO.: 240/2014)





Neutral
citation: S v Brandt (CR 9/2014) [2014] NAHCMD 70 (4 March 2014)





Coram: PARKER AJ
et UNENGU AJ





Delivered: 4
March 2014





Flynote:
Criminal procedure – Sentence – Suspended sentence –
Conditions of – Correct wording of condition of suspension –
The word ‘committed’ should be part of condition –
Additionally, condition should be clear and clearly related to the
crime accused is convicted of – Accused must know exactly which
conduct may lead to his having to serve the suspended sentence –
Conditions of suspension must meet these requirements.





Summary: Criminal
procedure – Sentence – Suspended sentence –
Conditions of – Correct wording of condition of suspension –
The word ‘committed’ should be part of condition –
Additionally, condition should be clear and clearly related to the
crime accused is convicted of – Accused must know exactly which
conduct may lead to his having to serve the suspended sentence –
In instant case the conditions imposed for suspending part of the
sentence are wrong because they do not contain the word committed –
Additionally, conditions that accused is ‘not convicted of any
offence of dishonesty’ not meeting such requirements.








ORDER








(a) The conviction
and sentence are confirmed.





(b) The condition of
suspension is deleted and replaced with the following –





Ten months’
imprisonment, of which a period of six months is suspended for three
years on condition that the accused is not convicted of (i)
housebreaking with intent to steal and theft or (ii) theft, committed
during the period of suspension.








JUDGMENT








PARKER AJ (UNENGU
AJ concurring):





[1] The accused
person was charged before the magistrates’ court for the
district of Mariental, held at Aranos, with one count of
housebreaking with intent to steal and theft. He was convicted on his
own plea of guilty and sentenced accordingly.





[2] The proceedings
are in accordance with justice but the formulation of the sentence is
wrong for two reasons. First, the suspension for three years of six
months of the sentence of 10 months’ imprisonment is subjected
to the condition that both the commission of the offence and the
accused’s conviction should both be within the suspended period
of three years. A condition of suspension should not be formulated in
such a way as to include both the commission of the offence and the
conviction therefor of the accused in the period of suspension. The
reason is that for all manner of reasons, it can happen that the
conviction only follows after the period of suspension has expired.
If that happened, the suspended part of the period of imprisonment
cannot be put into operation simply because the accused would not
have been convicted within the period of suspension.





[3] Second, a
condition of sentence must, among other things, comply with these two
requirements:





(a) it must be
related to the offence in question, that is, it must not be so wide
that it has no clear nexus with the offence concerned; and





(b) the condition
must be clear and the accused should know exactly what conduct may
lead to his or her having to serve the suspended sentence.





(See S v Oupieti; S
v Boois; S v Josef and Another 1991 NR 91.)





In the instant case,
the condition states that the accused should ‘not (be)
convicted of any offence of dishonesty’. The condition imposed
by the learned magistrate does not meet these requirements.





[4] Based on these
reasons, I make the following order:





(a) The conviction
and sentence are confirmed.





(b) The condition of
suspension is deleted and replaced with the following –





Ten months’
imprisonment, of which a period of six months is suspended for three
years on condition that the accused is not convicted of (i)
housebreaking with intent to steal and theft or (ii) theft, committed
during the period of suspension.











C Parker





Acting Judge











E P Unengu





Acting Judge