CASE NO.: CR 16/2012

NOT
REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
STATE

and

EEUBIU
KEFAS

HIGH
COURT REVIEW CASE NO.: 592/2011

CORAM: HOFF,
J et SIBOLEKA, J

Delivered
on: 29 February 2012

REVIEW
JUDGMENT

HOFF,
J: [1] The accused was convicted in the magistrate’s
court of the crime of malicious damage to property and sentenced as
follows:

“Three (3) years
imprisonment of which one (1) year is suspended for five (5) years on
condition accused is not convicted of any offence of which violence
is an element committed within the period of suspension.”

[2] The
accused admitted damaging a Toyota Land Cruiser vehicle (valued
between N$40 000.00 and N$80 000.00) belonging to the complainant by
setting it alight.

[3] I
directed the following query to the magistrate:

“The condition of the suspended sentence is that
the accused is not convicted of any offence of which violence is an
element.

Does it mean that the suspended sentence would be put
into operation if the accused is for example convicted of murder or
rape ?

Please explain the reason why such a wide condition was
imposed ?”

[4] The
reply I received was that the presiding magistrate is no longer
employed by the Ministry of Justice and has left Namibia.

[5] It
is trite law that the condition of suspension must not be so wide
that it has no nexus with the offence committed.

See
S v Van den Bergh 1976 (2) SA 232 (T); S v Du Preez
1975 (3) SA 187; S v Nkozi 2008 (1) SACR 87 (N).

[6] In
R v Cloete 1950 (4) SA 191 (O) the Court held that two
principles should be observed in the imposition of a condition. In
the first instance, the condition imposed should bear at least some
relationship to the circumstances of the crime which is being
punished by the imposition of the suspended sentence and secondly,
the condition must be stated with such precision that the convicted
person may understand the ambit of the suspension.

[7] In
addition to these two requirements it has also been held that a
condition of suspension must be reasonable and not unduly onerous for
the accused person to comply therewith.

[8] In
S v Valensia 1973 (3) SA 934 (N) it was held that it is always
a salutary rule to define specifically the offences which are
included in the conditions of suspension.

[9] In
my view to impose as a condition of suspension, as the magistrate did
in this matter, that the accused is not to be convicted of an offence
of which violence is an element is a too wide and onerous condition.

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

1. The
   conviction is confirmed.

   
   

2. The
   sentence is set aside and substituted with the following sentence:

   
   

Three (3) years imprisonment of
which one (1) year imprisonment is suspended for a period of five (5)
years on condition accused is not convicted of the crime of malicious
damage to property committed during the period of suspension.

_________

HOFF,
J

I
agree

_____________

SIBOLEKA,
J