1

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CR 51/2014

In the matter between:

THE STATE

and

NEELS SWARTBOOI

High CourtMD Review CaseRef No.: 790/2014

Neutral citation: S v Swartbooi(CR 51/2014) [2014] NAHCMD 272(19 September 2014)

Coram:LIEBENBERG J and SHIVUTE J

Delivered:19 September 2014

Flynote:Criminal procedure – Sentence –Suspended sentence – Bringing into operation of – Proper procedure set out – For State, not magistrate, to apply therefor.

ORDER

  1. The conviction and sentence are confirmed.
  2. The order putting into operation the suspended sentence dated 23.04.2011 is hereby set aside.

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JUDGMENT

LIEBENBERGJ(SHIVUTEJ concurring):

[1] The accused was convicted of assault (common) on his mere plea of guilty in terms of s 112(1)(a) of Act 51 0f 1977 and sentenced to a fine of N$1 000 or 6 months’ imprisonment. The conviction and sentence are in order and will be confirmed. The court thereafter on application by the prosecution put a suspended sentence, earlier imposed in another matter, into operation.

[2] On review a query was directed to the magistrate enquiring whether the correct procedure was adopted in that the court failed to explain the procedure to the unrepresented accused,neither was he afforded the opportunity to make presentations pertaining to the application to have the suspended sentence put into operation.

[3] In response the learned magistrate concedes that the presiding officer is under a duty to provide guidance and assist the unrepresented accused, stating that this was a mere oversight on his part.

[4] Upon conviction the prosecutor informed the court that the accused has one previous conviction of assault with intent to do grievous bodily harm and handed up a record of previous convictions as proof thereof. I pause here to observe that this document does not form part of the record of proceedings sent on review as the handwritten record and exhibits have not been included in the review record. The prosecutor, during submissions on sentence, requested the court to put the suspended portion of the sentence imposed in the previous case, into operation. In consequence thereto the magistrate upon pronouncing sentence ordered that the sentence imposed on 23.04.2011 be put into operation. It is not reflected on the record what the extent of that sentence is. Be that as it may, the procedure adopted by the court was irregular.

[5] The unrepresented accused must be informed (i) that he/she has the right to oppose the application to have the suspended sentence put into operation; (ii) that he/she may ask for further suspension of the sentence under s 297 (7) through argument and by leading evidence (and may call witnesses); and (iii) that the onus is on the accused to show why the latter request should be granted. It would therefore constitute an irregularity if the presiding judicial officer mero motu puts the suspended sentence into operation without warning the accused that the court considers imposing the previously suspended sentence (S v Witbooi and Others 2007 (2) NR 604 (HC); S v Frans 2009 (1) NR 356 (HC)).

[6] From the above it is evident that the State must bring an application for the suspended sentence to be put into operation and that the court has a judicial discretion to allow or refuse the application in terms of Section 297 of the Criminal Procedure Act, 1977. It will suffice to restate what has been said in S v Witbooi and Others (supra) at 605E-I:

‘[8] Dealing with the procedure to be followed when the magistrate wishes to put the suspended sentence into operation, Selikowitz J stated the following in the matter of S v Hoffman 1992 (2) SACR 55 (C) at 63 F-I:

“When a court considers whether or not to put a suspended sentence into operation, it is required to exercise a judicial discretion. The accused has to be apprised of his right to lead evidence and to advance argument to the court with a view to resisting the putting into operation of the suspended sentence or to advance reasons for its further suspension of the sentence . . . . In the exercise of its discretion the court is engaged in a sentencing process and must consider and apply all the necessary principles which it would apply if it was imposing an original sentence . . . . If the court is asked to put a sentence into operation where the breach has resulted in a subsequent conviction, the court hearing the application ought, in my view, to know what sentence has been imposed in the later trial before it orders that the earlier and suspended sentence be put into operation. Furthermore, it is both impractical and potentially prejudicial to the accused to put the suspended sentence into operation in a case which is subject to automatic review in terms of s 302 or even 304A of the Act until the conviction and sentence have been confirmed. Where a suspended sentence is put into operation the decision so to do is not subject to automatic review nor is it appealable.”

[7] In view of the accused not having been afforded the opportunity to resist the application to have the suspended sentence put into operation, he was severely prejudiced and the court’s order to that end falls to be set aside.

[8] In the result, it is ordered:

  1. The conviction and sentence are confirmed.
  2. The order putting into operation the suspended sentence dated 23.04.2011 is hereby set aside.

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JC LIEBENBERG

JUDGE

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N N SHIVUTE

JUDGE