STOW v REGIONAL MAGISTRATE, PORT ELIZABETH AND OTHERS 2017 (2) SACR 96 (ECG)
Sentence — Suspended sentence — Putting into operation of — Breach of conditions of suspension — Failure to pay amounts imposed as condition of suspension — Constitutionality of s 297(1)(b) read with s 297(1)(a)(i)(aa) of the Criminal Procedure Act 51 of 1977 — Provisions not discriminating against persons without means and not unconstitutional.
The applicants in two matters that were consolidated (the legal issues in both being identical) had appeared in regional magistrates’ courts where suspended sentences were put into operation, in terms of s 297(9)(a)(ii) of the Criminal Procedure Act 51 of 1977 (the CPA), for the breach of conditions that required them to pay certain amounts of money.
In the first case the order was made in respect of a contravention of the Value-Added Tax Act 89 of 1991 and the sentence was suspended on condition that the applicant repay the amount of R500 000 by way of monthly payments of R10 000. In the second case the applicant was convicted of a contravention of s 11(1) of the Banks Act 94 of 1990 in that he had conducted the business of the bank which was not registered. He was ordered to repay investors who had lost money and his sentence was suspended on condition that he make monthly repayments. In both cases the applicants defaulted on their payments.
The applicants applied for an order declaring s 297(1)(b) read with s 297(1)(a)(i)(aa) of the CPA unconstitutional on grounds that: (1) there was no legislative requirement to determine whether an accused person had the necessary financial resources to comply with the order of compensation. A person could be sent to prison without proof of wilful disobedience of a court order and because of his inability to pay any outstanding amount. Such a person was therefore discriminated against on the basis that he was poor; (2) there were no legislative requirements for determining when compensation should be imposed as a condition of suspension or made as an order in terms of s 300 of the CPA. If a s 300-order was made there would be no threat of imprisonment (a person could not be imprisoned for a civil debt) and the difference was therefore discriminatory; and (3) there was no provision for recognition to be taken of partial fulfilment of a condition of compensation. In such circumstances, a court was bound to put the whole of the suspended sentence into operation, resulting in unfairness.
Held, in respect of the first ground, that the sentencing court had a discretion in deciding what condition of suspension to impose and was given a wide range of conditions which it could impose. There were certain requirements for the imposition of conditions, namely that the condition had to be related to the crime; it had to be clearly set out so that the accused person could understand what future conduct was prohibited or required; it had to be reasonable and not cause unfairness or injustice; and it should not violate an accused person’s constitutional rights. If a court transgressed these requirements the accused had recourse to appeal or review. If the amount of compensation ordered was beyond the means of the accused, so that he did not get the intended benefit of a suspended sentence, a higher court could interfere with such condition (see –).
Held, in respect of the second ground, that compensation as a condition of suspension was an integral part of the sentence and was a flexible condition which could be adapted to a person’s means and the length of time it would take to make full restitution. Its imposition was subject to the safeguards mentioned in respect of the first ground whereas s 300 was a convenient means of recovering a debt without having to institute a civil action and could only be utilised if the victim or the state applied for such an order. The victim could renounce it, however, which impacted the effectiveness of the order, whereas compensation as a condition of suspension remained the prerogative of the court and served a more meaningful purpose in the shaping of a suitable sentence (see [64)).
Held, further, that there were sufficient safeguards in s 297(7) of the CPA to prevent unfairness as the court had a discretion in deciding whether to suspend the sentence further, including on further conditions. Provision was made for failure to comply with a condition for reasons beyond the accused’s control, and the court could consider any other good and sufficient reason. The sentence was not automatically put into operation when a breach occurred and there had to be a hearing where the accused could be heard on why the sentence should be further suspended. The legislation therefore afforded sufficient protection of the accused’s constitutional rights (see –).
Held, in respect of the third ground, that payment by an accused of a portion of the compensation could be considered as good and sufficient reason for suspending the sentence further, perhaps on further conditions or deletion of the condition depending on all the circumstances, including the reason for his having not paid the full amount of compensation. The lack of a provision allowing a court to reduce sentence, where there had been partial compliance with the conditions of suspension, was therefore not inconsistent with a person’s right to a fair trial (see  and ).
The court examined the merits of the two applications and dismissed them on their individual circumstances.