HIGH
COURT REVIEW CASE NO. 988/2001

THE
STATE

versus

ALFRED
ALBERT OLIVIER Accused

HIGH
COURT REVIEW CASE NO. 1550/2001 CORAM: SILUNGWE,
J., MARITZ, J. et LEVY, J.

Heard
on: 2001-11-26

Delivered
on: 2001-12-14

JUDGMENT

MARITZ,
J.: Only
one issue falls to be decided in these two reviews: the competency
of a court to sentence a convicted accused to payment of a fine (or
in default, imprisonment) plus a further period of imprisonment
wholly or partially suspended for such period and such conditions as
are contemplated in s.297 (1) of the Criminal Procedure Act, 1977.

The
accused in the Nvula-case was convicted of the crime of indecent
assault and sentenced to N$3 000.00 or 15 months imprisonment plus a
further 15 months imprisonment which were suspended in whole on
condition that the accused is not convicted of indecent assault
committed during the period of suspension. The matter came before my
sister, Judge Gibson, on automatic review. In response to her query
about the severity of the sentence, the magistrate furnished reasons
why the sentence was appropriate in the circumstances but, in view
of a number of recent review judgments dealing with the competency
of courts to impose sentences in that form, requested that the
15-month suspended sentence be set aside.

The
sentence imposed in the Olivier-review for having stayed in Namibia
beyond the permissible period endorsed in his passport in
contravention of s. 29(5) of the Immigration Control Act, 1993, is
similar in form: "N$2

500.00
fine of 12 months imprisonment, plus a further 12 months
imprisonment suspended for 2 years on condition that the accused is
not convicted of a contravention of s.29(5) of Act 71 of 1993
committed during the period of suspension." When queried about
the competency of the sentence, the magistrate agreed on the same
basis as the one in the Nvula-review that the 12 month suspended
sentence should be set aside.

In both
instances, the trial magistrates conceded their "error" on
account of the ratio
in
a number of recent review judgments handed down by this Court. In
those judgments it was held that the imposition of a suspended
sentence of imprisonment in addition to the imposition of a fine,
conflicted with the provisions of s.297(l)(b) of the Criminal Code.

The
reviewing Judges in the two reviews under consideration, found
themselves in respectful disagreement with that line of thought and,
with leave of the acting Judge President, caused the issue to be
heard by the full Court. The full Court requested counsels'
arguments on the competency of the sentences in the reviews under
consideration but also invited argument on the following
illustrative examples of sentences to stimulate both thought and
debate on the issue:

"(a) 12
months imprisonment plus a further 6 months

imprisonment
wholly suspended for a period of ...

2. 
   N$
   1000-00 fine or, in default of payment, 1 year imprisonment plus a
   further N$ 600-00 or 6 months imprisonment wholly suspended for a
   period of ...

   
   

3. 
   N$
   1000-00 fine or, in default of payment, 1-year imprisonment plus a
   further 6 months imprisonment.

   
   

4. 
   N$
   1000-00 fine or, in default of payment, 1 year imprisonment plus a
   further 6 months imprisonment the whole of which imprisonment is
   suspended for a period of ...

   
   

5. 
   N$
   1000-00 fine or, in default of payment, 1 year imprisonment plus a
   further 6 months imprisonment, 3 months of which imprisonment are
   suspended for a period of...

   
   

The
Court is grateful for the submissions made by Ms Lategan (for the
State) and Mr Maritz (who appeared amicus
curiae). They
submitted that the sentences in examples (a) and (b) are not
competent under s.297(l)(b) of the Criminal Procedure Act, 1977,
and, in our view, for good reason.

The
relevant provisions of section 297 reads as follows:

"(1)
Where a court convicts a person of any offence, other than an
offence in respect of which any law prescribes a minimum punishment,
the court may in its discretion-la)-

(b) pass
sentence but order the operation of the whole or any part thereof to
be suspended for a period not exceeding five years on any condition
referred to in paragraph (a) (i) which the court may specify in the
order; ..."

The
section empowers the court to suspend the whole or any part of a
"sentence passed". On a careful reading of the subsection,
it is clear that what the Legislature intended, was an amelioration
of a sentence passed by authorising the suspension of the whole or
any part thereof. It did not authorise the sentencing officer to
increase the severity of the sentence passed by tacking on a further
sentence and to suspend the latter wholly or in part. We are glad to
note that it is also the view of Mullins, J in Sy Labuschagne
and 19 Others, 1990
(1) SACR 313 (E) at 315/-g:

"To
revert to the provisions of s 297(1) (b) of the Criminal Procedure
Act, there is also judicial authority for the aforementioned view
that the suspended portion of a sentence is not an additional
sentence tacked on to a substantive sentence, but that it must be
'part of such substantive sentence. In other words, the sentence
passed for a particular offence consists of both the unsuspended and
the suspended portions thereof, and such total sentence must not
only be a competent sentence, but must be appropriate for the
offence for which the offender is being punished."

We also
agree with the approach to sentencing proposed by him when the court
contemplates a suspension of a sentence under section 297(l)(b):

"The
proper approach of a judicial officer faced with the determination
of an appropriate sentence is firstly to consider the nature of the
punishment imposed. In casu, he must decide whether the offence
calls for a fine alone (with the alternative of imprisonment), or
imprisonment alone, or both fine and imprisonment. S v
Juta, 1988
(4) SA 926 (T) at 927H. Having decided on the form of punishment,
the magnitude of the fine or the length of imprisonment, or both,
must be decided. I agree with the view of Van Reenen CJ in Juta's
case
supra that the alternative period of imprisonment is the sanction
which the Court regards as appropriate in the event of non-payment
of the fine.

Having
determined both the appropriate form of sentence, and the magnitude
thereof, the magistrate may decide to suspend part of the sentence.
It would in my view, however, be improper to increase the
appropriate sentence and to suspend such increase merely in order to
deter the offender from repeating his offence." (At 316 d-yj

The same
view, although differently expressed was echoed by Schutz, JA in
Sv Slabbert, 1998
(1) SACR 646 (SCA) at 648d:

"In
a different context it has been held that a suspended sentence is
not something 'tacked on' to an unsuspended sentence. The suspended
part is not to be viewed as if it will not be served. It is part of
the whole sentence and it
is the whole that should be appropriate, before consideration is
given to suspension of a part."
(Emphasis added)

A
sentence formulated along the lines of the example in paragraph (a)
supra
is
not competent for two reasons: It is contrary to section 297(l)(a)
because it aggravates the substantive sentence passed by
impermissibly adding on a further sentence - albeit suspended
(Compare, in addition to the authorities already cited: S
v Z en Vier Ander Sake, 1999
(1) SACR 427 (E) at 4341, S V
Oosthuizen en 'n Ander, 1995
(1) SACR 371 (T) at 374C, S v
Allart, 1984
(2) SA 731 (T) at 734A, S v
Olyn en Andere, 1990(2)
SA 73 (NC), S v
Setnoboko, 1981(3)
SA 553 (O) at 556E-F, S v
Nangolo, 1995
NR 208 (HC) and the unreported judgments of this Court in Sy Simon
Teister,
CR
124/2000 dated 29 November 2000 and S v
Petrus Tjoboa and Mathias Kadumwa, CR
18/2001 dated 13 February 2001). It also amounts to an impermissible
fragmentation of the same type of sentence for the purported
attainment of differing sentencing objectives. This reason is
perhaps best illustrated by the words of Fieldsend, CJ in S v
Wakiri, 1981(2)
SA 527 (ZAD) at 529F:

"I
do not regard it as the right approach to decide what effective
imprisonment an accused should undergo and then to add a suspended
sentence with a view to dissuading him from further crime. The
result of this latter course might be, if the dissuasion is not
effective, that an accused will have to serve a longer sentence for
his offence than it really deserves because he has again fallen from
grace."

It is
for the same reasons that the sentence in example (b) is also
impermissible (See the unreported judgment of this Court in Sy
Gideon
Xoagub, Case
No. CR 92/2001 dated 23 May 2001).

Turning
to the sentence in example (c): It does not contain any suspensive
provision but contemplates a compound sentence by combining of two
types of punishment: a fine and a period of imprisonment without the
option of a fine (see: s.276(l)(b)and (f) of the Criminal Procedure
Act, 1977). There is no doubt that a sentencing officer may use both
those sentencing tools to tailor an appropriate sentence suitable
for an offender in the circumstances of the case. Virtually every
penal provision in our statutes allows for the imposition of a fine
or imprisonment "or both such fine and imprisonment".
Moreover, the imposition of such a composite sentence is expressly
contemplated in s. 287(1) of the Criminal Code:

"Whenever
a court convicts a person of any offence punishable by a fine
(whether with or without any other direct or alternative
punishment), it may, in imposing a fine upon such person, impose, as
a punishment alternative to such fine, a sentence of imprisonment of
any period within the limits of its jurisdiction: Provided that,
subject to the provisions of subsection (3), the
period of such alternative sentence of imprisonment shall not,
either alone or together with any period of imprisonment imposed as
a direct punishment, exceed the longest period of imprisonment
prescribed by any law as a punishment
(whether direct or alternative) for such offence."

Such a
composite sentence would, to mention only one example, be
appropriate in cases where an accused has committed an "economical
offence" (e.g. dealing in rough and uncut diamonds) and the
court deems in appropriate that he or she should be punished in a
like manner and, given the seriousness of the offence, also be
incarcerated for a period 6 months without the option of a fine.

If a
composite sentence is both permissible in law and appropriate in the
circumstances of the case, there is no reason in logic or in law
why, in applying the approach earlier referred to on p316d-/of the
Labuschagne-case,
is it suddenly impermissible to suspend the whole (example (d)) or
part (example (e)) of the imprisonment contemplated in such a
compound sentence in terms of s.297(l)(b). Such a suspension does
not add anything to the substantive composite sentence, it simply
ameliorates the harshness thereof. Our law reports abound with
examples of sentences imposed in that form.

Of
course, when the sentencing officer deems the imposition of a fine
(e.g. N$l 000.00 or, in default of payment, one year imprisonment)
as adequate punishment for the offence, the addition of any further
suspended sentence to that substantive sentence will be
impermissible -and it matters not whether the sentence tacked on in
that instance is a further fine (example (b)) or a period of
imprisonment wholly or partly suspended. The tacking on of such an
additional sentence to the substantive sentence will not be
competent for the reasons already mentioned when discussing examples
(a) and (b).

We must
immediately acknowledge that a composite substantive sentence (of a
fine and imprisonment) of which the period of imprisonment is wholly
or partly suspended may read exactly the same as a substantive
sentence of a fine with the impermissible addition of a period of
imprisonment wholly or partly suspended: e.g. "N$ 1000-00 fine
or, in default of payment, 1 year imprisonment plus a further 6
months imprisonment, the whole of which imprisonment is suspended
for a period of

It seems
to us that the similarity in formulation of what is on the one hand
a permissible sentence and on the other hand an impermissible one,
may have been the cause of some confusion. What is not readily
recognised is that the use of the words "plus a further"
or "and in addition" in the formulation of a compound
sentence connect two different types of sentencing tools in one
substantive sentence. They have no reference to and do not introduce
the suspended part of the sentence - as they do when a further
sentence is impermissibly tacked on to a substantive sentence.

This
Court, in a full bench judgment handed down in the case of S v
Nangolo, supra, recognised
the difference between the addition of suspended sentences to a
substantive sentence (such as in example (a)) and the suspension of
part of a composite sentence when it said (per
Frank,
J at 210F-I):

"Because
of the problems that the use of the words such as 'plus' or 'in
addition' can cause when
they introduce the suspended portion of the sentence,
they should be avoided. As pointed out they, prima
facie, create
the impression that a second and different sentence is imposed and
where nothing appears from the record to indicate that it was not
intended as an additional sentence but was still part of the one
composite sentence, an appeal court will be compelled to interfere
herewith.

It must
be added in passing that there is a whole array of statutory
offences where the enabling legislation authorises such sentences.
The most common sentence that comes to mind is where the statute
prescribes a fine or imprisonment or both such fine and
imprisonment. In such a case it is clearly in order to impose a fine
and in addition to that imprisonment. Here
different considerations apply
as the sentence would obviously not be ex
facie problematical."
(Our underlining)

Whether
a sentence imposed in such a form is competent or not, must
therefore be determined in the circumstances of each case, bearing
in mind what the sentencing officer intended as a suitable
substantive sentence for the offender. What is clear though, is that
a composite sentence of a fine and imprisonment of which the whole
or part of the imprisonment is suspended, is not per
se impermissible
as the unreported review judgments of this Court in S v
Sydney Hendricks (Case
No. CR 85/2001 dated 9 May 2001), S v
Manfred Baby Tjiho (Case
No. CR109/2001 dated 2 July 2001) and others seem to suggest or, at
least, are being understood by the magistrates involved in these two
reviews when they conceded their "error". The reasoning in
those two unreported review cases appears to be founded on an
incorrect understanding of the Labuschagne-ca.se:
it
loses sight of the fact that Mullins, J expressly contemplated (at
316d-/of that judgment) that a sentence in the "appropriate
form" that may be suspended in whole or in part, includes a
compound sentence of both a fine and imprisonment.

A useful
guide that less experienced sentencing officers may apply to ensure
that a suspended sentence is framed and imposed in a competent
manner is, firstly to write down the sentence that he or she deems
appropriate in the circumstances of the case and to assess if that
sentence (whether compound or not) is authorised under the
applicable legislation or in common law. Only if he or she is
satisfied that it is and it is appropriate to suspend the whole or
any part thereof, to do so (without adding any further sentence) for
the period and on the conditions contemplated in s.297 (l)(b) of the
Criminal Procedure Act, 1977.

It is
apparent to us that the form of the substantive sentence which the
magistrates deemed appropriate in the circumstances was that of a
compound sentence of which a part was suspended. There is no
suggestion that they intended to add a further sentence to the
substantive composite sentences when they suspended part thereof.
Furthermore, having considered the reasons advanced by them, we are
also satisfied about the adequacy of the sentences.

MARITZ,^.

I agree.

6

SILUNGWE,
J.

I agree.