Court name
High Court
Case number
31 of 2012
Title

S v Guruseb (31 of 2012) [2012] NAHC 116 (15 May 2012);

Media neutral citation
[2012] NAHC 116
Coram
Hoff J
Smuts J
























REPORTABLE



CASE NO. CR 31/2012













SUMMARY:













IN THE HIGH COURT OF NAMIBIA













MAIN DIVISION













HELD AT WINDHOEK













In the matter between:













THE STATE













and













EFRAIM GURUSEB













HOFF, J / SMUTS, J



15 May 2012



__________________________________________________________________________








Suspension of sentence –
condition of suspension should only refer to an offence which has a
material connection to the nature and circumstances of the offence of
which the accused had been convicted of – condition must not be
so wide that it has no nexus with the offence the accused had been
convicted of



Care should be taken that a
severe suspended sentence is not put into operation by a petty
contravention



Duty of court to formulate
condition(s) of sentence within certain parametres – something
which should not in an ill-considered manner be left to be taken care
of in the future.



Conditions of sentence must also
be reasonable and formulated in such a way that they do not cause
future unfairness and injustice.
















































CASE NO.: CR 31/2012



REPORTABLE













IN THE HIGH COURT OF NAMIBIA








MAIN DIVISION








HELD AT WINDHOEK













In the matter between:













THE STATE













and













EFRAIM GURUSEB


















HIGH
COURT REVIEW CASE NO.: 700/2012


















CORAM: HOFF, J et
SMUTS, J













Delivered on: 15 May 2012


















REVIEW
JUDGMENT

















HOFF,
J
: [1]
The accused was convicted of the crime of assault with intent to do
grievous bodily harm and sentenced to 3 years imprisonment of which 1
year imprisonment was suspended for a period of 5 years on condition
that the accused is not convicted of assault with intent to do
grievous bodily harm, assault common, or indecent assault committed
during the period of suspension.








[2] The accused pleaded guilty
that he stabbed the complainant with a knife in his back and in his
stomach.








[3] I directed a query to the
magistrate requesting reasons why in the formulation of the
conditions of the suspended part of the sentence “common
assault or indecent assault” were included.








[4] The magistrate in his reply
referred me to the provisions of section 297 (1)(b) of Act 51 of 1977
which provide that a court may pass sentence but order the operation
of the whole or any part thereof to be suspended on any condition
referred to in paragraph (a)(i) which the court may specify in the
order.



The magistrate continued and
stated: “Therefore the discretion on the condition(s) to be
attached to the sentence is the courts. The offences attached to the
condition, namely assault common and indecent assault can be regarded
to fall within the category of section 297 (1)(a)(i)(hh)”.








[5] In terms of section 297
(1)(a)(i) a Court may postpone (in contradistinction to a suspension)
the passing of a sentence on one or more conditions relating to, in
terms of subsection (hh)“,any other matter”.








[6] The expression “any
other matter” is extremely wide but must be interpreted in the
light of the principle that a condition must be related to the
offence in question.



The Court in S v Van den Berg
1976 (2) SA 232 (TPD) at 234 H referred with approval to the matter
of S v Radebe 1973 (3) SA 940 (O) where it was held that a
condition of suspension should only refer to an offence which has a
material connection to the nature and circumstances of the offence of
which the accused had been convicted of
i.e. it must not be so
wide that it has no nexus with the offence the accused had been
convicted of.








[7] The reference to “indecent
assault” is in my view too far removed from the nature and
circumstances of the offence of assault with intent to do grievous
bodily harm of which the accused had been convicted of. In addition
indecent assault also implies conduct of a sexual or immoral nature
and as such there is no nexus at all between indecent assault and the
offence the accused had been convicted of.








[8] The reference to “assault
common” is not unrelated to the offence of assault with intent
to do grievous bodily harm but should in the light of the sentence
imposed not have been included in the manner it was drafted in the
suspended sentence. I say this for the following reasons:



One year imprisonment was
suspended on condition the accused is not convicted of common assault
committed within the period of suspension. This in turn means that
should the accused be convicted of common assault (which depending on
the circumstances may be regarded as a petty offence) there exist the
possibility that the suspended sentence of one year imprisonment may
be put into operation in addition to the sentence which may be
imposed for his second conviction.








[9] In S v Allart 1984
(2) SA 731 TPD the court held that a suspended sentence for dealing
in dagga in contravention of section 2(a) of Act 41 of 1971 on
condition that section 2(a) and section 2(b) (possession or use of
dagga) are not contravened falls within the ambit of section 297(1)
of the Criminal Procedure Act, 51 of 1977 but warned that care should
be taken to ensure that a severe suspended sentence for a
contravention of section 2(a) is not put into operation by a petty
contravention of section 2(b). The Court in Allart at 736 A –
B held that the condition of suspension must be formulated to
eliminate this danger and that the attitude of the trial court should
not be that the Court which has in future the duty to consider an
application to put the suspended sentence into operation, would have
the discretion to further suspend that sentence. To do so would be to
neglect the duty of the trial court to formulate the condition(s) of
sentence within certain parametres, something which should not in an
ill-considered manner be left to be taken care of in the future. As
was suggested in Allart (supra) by imposing an appropriate
qualification, for example that the suspended sentence can only be
put into operation when effective imprisonment of a specific period
is imposed for the subsequent conviction, may the problem be avoided.








[10] I endorse these views.



In S v Benn; S v Jordaan; S v
Gabriels
2004 (2) SACR 156 CPD it was held that in addition to
the requirement that the conditions of suspension should have some
relation to the crime committed, the conditions must be reasonable
and should further be formulated in such a way that they do not cause
future unfairness and injustice.








[11] I am of the view that the
sentence imposed by the magistrate court cannot be left unamended.








[12] In the result the following
orders are made:









  1. The conviction is confirmed.










  1. The sentence is amended to read
    as follows:









Three years imprisonment of
which one year imprisonment is suspended for a period of 5 years on
condition that the accused is not convicted of the crime of assault
with intent to do grievous bodily harm or the crime of common assault
committed during the period of suspension and where in respect of a
conviction in respect of common assault the accused is sentenced to a
direct term of imprisonment of not less than six months.




























_______



HOFF, J


















I agree























___________



SMUTS, J