Recent Case: Specific crimes

• Jurisdiction: South Africa
• Author: Ronald Louw
• Citation: (2003) 16 SACJ 415
• Pages: 415-420
• Date: 24 May 2019
• Published date: 24 May 2019

RECENT CASES

Specific Crimes

RONALD LOUW

University of Natal, Durban

Contravention of Act 1 of 1988

In

S v Flanagan

2003 (2) SACR 98 (E), the accused was charged with a

contravention of s 17(a) of the Domestic Violence Act 1998, alternatively with

a contravention of s 1(1) of the General Law Amendment Act 1 of 1988. He

was charged on the main count as he had allegedly violated a provision of a

protection order made earlier in terms the Domestic Violence Act. The

violation in question related to the accused taking food from his wife and

flushing it down the toilet. He was apparently intoxicated at the time. The

accused pleaded guilty to the alternative charge and was sentenced to a

period of imprisonment suspended on certain conditions.

As a mere conviction of contravening s 1(1) of Act 1 of 1988 says nothing

of the nature of the actual offence, on review the court applied the decision

in

S v Maki

1994 (2) SACR 414 (E). In that decision the court held that an

essential element of the offence contained in Act 1 of 1988 is the commission

of the wrongful act contained in the main charge. Accordingly the conviction

on the alternative charge should reflect that, as a failure to do so would in

practical terms result in a meaningless record of the conviction. However, the

conviction should not be recorded in such a manner as to create the

impression that the accused had been convicted or punished for the original

offence. In this case the correct manner of recording the conviction should

have been: 'Guilty of a contravention of s 1(1) of Act 1 of 1988 (following

upon a contravention of s 17(a) of the Domestic Violence Act 116 of 1998, in

respect of which the accused was acquitted)' (at 101j).

Furthermore, the court held that any conditions of suspension should

make reference to both the main count and the contravention of Act 1 of

1988. The reason for this is, again, that an essential element of the alternative

charge is the wrongful act in the main charge. Thus the correct manner of

recording the suspension of sentence should have been (at 102h-i

):

415

(2003) 16 SACJ 415

© Juta and Company (Pty) Ltd