S v Morris

• Jurisdiction: South Africa
• Citation: 1992 (2) SACR 365 (C)

S v Morris
1992 (2) SACR 365 (C)

1992 (2) SACR p365

Citation	1992 (2) SACR 365 (C)
Court	Cape Provincial Division
Judge	Rose Innes J
Heard	July 13, 1992
Judgment	July 13, 1992

Flynote : Sleutelwoorde

B Review — Powers of Court — Correction of sentence — Court has power in terms of s 304(2)(c)(iii) of Criminal Procedure Act 51 of 1977 to correct penalty imposed or conditions of suspension of sentence — But in so doing Court cannot render either the penalty or the conditions of suspension more onerous — Fact that error in sentence or conditions was inadvertent and could have been corrected in presence of accused in terms of s 298 of C Act not conferring power on Court to increase sentence.

Maintenance — 'Maintenance order' — What is — Includes sentence suspended on condition that convicted person makes periodical payments towards maintenance of another — Maintenance Act 23 of 1963, s 1 — Condition of suspension of sentence that accused pay arrear maintenance in specified sum in stipulated monthly instalments — Magistrate making error D as to total amount of arrear instalments in that amount less than that established by evidence — Such error cannot be corrected on review in terms of s 304(2)(c)(iii) of Criminal Procedure Act 51 of 1977 as such correction would amount to making conditions of suspension more onerous — But correction can be achieved by way of an enquiry in terms of s 5 of Maintenance Act on a complaint under s 4 by person to whom maintenance E payable.

Headnote : Kopnota

A suspended sentence consists of the penalty imposed and the conditions upon which the penalty is suspended which are part and parcel of the sentence which is taken on review in an automatic review, so that the Court may, in a proper case, correct, in terms of s 304(2)(c)(iii) of the F Criminal Procedure Act 51 of 1977, the penalty or the terms of the conditions of suspension, or both, but in so doing it cannot increase or render more onerous either the penalty or the conditions of suspension.

In terms of the definition of 'maintenance order' in s 1 of the Maintenance Act 23 of 1963 a maintenance order 'includes any sentence suspended on condition that the convicted person makes periodical payments G of sums of money towards the maintenance of any other person'. As a consequence, such a condition of suspension, being a maintenance order, may be substituted by a subsequent maintenance order made by the magistrate's court holding an enquiry as a maintenance court under s 5 of the Act on the complaint under s 4 of the person seeking the substitution of a new maintenance order for the order which is in force.

H The Court, in an automatic review of a suspended sentence of imprisonment imposed on the accused on his conviction of failing to comply with a maintenance order in contravention of s 11(1) of the Maintenance Act, accordingly held that, where the magistrate, in framing the conditions of suspension, had erroneously inserted the incorrect amount of arrear maintenance which the accused had to pay off in monthly instalments, such I erroneous amount (which was lower than the correct amount proved in evidence) could not be corrected on review in terms of s 304(2)(c)(iii) of the Criminal Procedure Act as such a correction would amount to rendering the conditions of suspension more onerous, but that the correction could be achieved by way of an enquiry by the maintenance court in terms of s 5 of the Maintenance Act on a complaint under s 4 by the person to whom the J maintenance is payable.

1992 (2) SACR p366

A Where the correction of an error in a sentence would entail increasing the sentence which was passed and recorded or altering the conditions of suspension so as to make them more onerous for the accused, the Supreme Court has no power on review to do so. The fact that the error was inadvertent and could have been corrected in the presence of the accused in terms of s 298 of the Criminal Procedure Act cannot confer on the B reviewing Court the power which it does not have to increase a sentence.

Case Information

Review.

Judgment

Rose Innes J:

The accused was convicted on 18 February 1991 in the magistrate's court of contravening s 11(1) of the Maintenance Act 23 of 1963 in that he failed to comply with the maintenance order made on 27 April 1989 in the magistrate's court sitting as a maintenance court in terms of the Act, for the payment to his former wife of maintenance at the rate of R150 per month for the support of his two children. C

D In its judgment the court made a finding that the arrear maintenance which accused had failed to pay pursuant to the maintenance order amounted to R2 450. This finding was supported by the evidence at the trial.

In the sentence which it thereafter imposed and recorded, the court erroneously stated the amount of the arrear maintenance to be R1 450. The sentence was as follows:

E 'Six months imprisonment which is suspended for five years on the following conditions:

(i)

that during the period of suspension...