S v Slabbert

• Jurisdiction: South Africa
• Judge: Van Heerden JA, Nienaber JA and Schutz JA
• Judgment Date: 03 March 1998
• Counsel: M Gerber for the appellant C J Theunissen (Ms) for the State
• Hearing Date: 26 February 1998
• Court: Supreme Court of Appeal

Schutz JA:

Upon a plea of guilty the appellant was convicted of the theft of R101 537,71 from her employer. The learned A regional magistrate presiding sentenced her to five years' imprisonment, to which s 276(1)(i) of the Criminal Procedure Act 51 of 1977 ('the Act') would apply. This means that the Commissioner for Correctional Services ('the Commissioner') has a discretion to release her from gaol and to place her under correctional supervision. In addition to the five years, the B magistrate sentenced her to two years' imprisonment, conditionally suspended for five years.

The additional sentence has led to this appeal because, after an unsuccessful appeal to the Cape Provincial Division, a petition to the Chief Justice led to leave being granted, but only on the question whether the composite sentence imposed is C a competent one.

The provisions of the Act that are relevant are the following. Section 276, which is headed 'Nature of punishments', reads in part:

'(1)

Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person D convicted of an offence, namely -

(a)

. . .

(b)

imprisonment, including imprisonment for life or imprisonment for an indefinite period as referred to in s 286B(1);

(c)

periodical imprisonment; E

. . .

(h)

correctional supervision;

(i)

imprisonment from which such a person may be placed under correctional supervision in his discretion by the Commissioner.

(2)

. . .

(3)

Notwithstanding anything to the contrary in any law contained, the provisions of ss (1) shall not be construed as prohibiting the court - F

(a)

from imposing imprisonment together with correctional supervision; or

(b)

from imposing the punishment referred to in ss (1)(h) or (i) in respect of any offence.'

Section 276A(2) provides: G

'(2)

Punishment shall only be imposed under s 276(1)(i) -

(a)

if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and

(b)

for a fixed period not exceeding five years.' H

The concluding words quoted from (a) and (b) appear to be both clear and peremptory. Punishment (meaning imprisonment) under the subsection shall not exceed five years. For this reason Kriek JP held in S v Randell 1995 (1) SACR 403 (NC) that a sentence of six years'...