CONDITION OF SUSPENSION TOO ONEROUS

S v KOK 2015 (2) SACR 637 (WCC)
Sentence — Suspension of — Conditions of suspension — On condition accused repay large amount to state — Magistrate giving accused grace of one year in which to pay, in erroneous belief that debts to state had to be repaid within one year — Requirement unduly onerous — Matter remitted to court for imposition of sentence afresh.

The accused was convicted in a regional magistrates’ court on a charge of having stolen in excess of R98 000 from the state and was sentenced to a term of imprisonment that was suspended on condition that he repay the amount within a period of one year. He failed to pay as stipulated and he was then arrested and started serving his sentence. He applied for leave to appeal and contended that, in imposing sentence, the magistrate had erroneously taken the view that, in terms of the Public Finance Management Act 1 of 1999, it was required that all debts to the state had to be repaid within 12 months, and accordingly made this stipulation. The matter came before the court by way of special review.

Held, that, as it appeared that there was no such legal requirement as referred to by the magistrate, the magistrate had clearly misdirected himself by relying on such a provision to limit the period of repayment of the amount owed by the accused. As a result of this, the condition of suspension, that he pay off the amount owed to the state in one year, was unduly onerous and it was not reasonably possible for the accused to comply with this condition of suspension. As a result of this the sentence imposed, as well as the F subsequent putting into operation of the sentence, fell to be set aside. The matter was remitted to the regional court for sentence to be considered afresh before another regional magistrate in terms of the provisions of s 275 of the Criminal Procedure Act 51 of 1977.

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