S v Toms; S v Bruce

• Jurisdiction: South Africa

S v Toms;
S v Bruce
1990 (2) SA 802 (A)

1990 (2) SA p802

Citation	1990 (2) SA 802 (A)
Court	Appellate Division
Judge	Corbett CJ, Botha JA, Smalberger JA, Kumleben JA, Nicholas AJA
Heard	February 27, 1990
Judgment	March 30, 1990

Flynote : Sleutelwoorde

Defence force — Defence Act 44 of 1957 — Refusal to render service B in terms of s 22 of Act in contravention of s 126A(1)(a) of Act — Sentence C — Section providing for accused to be 'liable on conviction to imprisonment for a period one-and-a-half times as long as aggregate of all periods of service mentioned in s 22(3)... or for a period of 18 months, whichever is the longer' — Section not thereby providing for mandatory sentence — Section 283 of Criminal Procedure Act 51 of 1977 D also applicable to sentence imposed in terms of s 126A(1)(a) of Defence Act and court therefore has, in addition, discretion in terms of s 283 to impose lesser sentence — Sentence in terms of s 126A(1)(a) of the Defence Act can be suspended in terms of s 297(1)(b) of the Criminal Procedure Act — Great care to be taken in formulating conditions of E suspension lest inappropriate conditions defeat the purpose of suspension.

Criminal procedure — Sentence — Suspension of — Sentence in terms of s 126A(1)(a) of the Defence Act 44 of 1957 for refusing to render military service can be suspended in terms of s 297(1)(b) of the Criminal Procedure Act 51 of 1977 — Great care to be taken in F formulating conditions of suspension lest inappropriate conditions defeat the purpose of suspension.

Headnote : Kopnota

The two appellants had been convicted in different magistrates' courts of contravening s 126A(1)(a) of the Defence Act 44 of 1957 in that they had refused to render military service. In the case of T, the appellant G had some years previously completed his basic military training and the conviction related to his refusal to render further periods of training. In the case of B the appellant had refused to do his basic period of training. In both cases the appellants were sentenced by magistrates who were of the opinion that s 126A(1)(a) provided for a mandatory sentence and they were accordingly sentenced to terms of imprisonment on this basis. Their appeals to respectively a Provincial and a Local Division were unsuccessful. In further appeals the appeals were heard together H for the sake of convenience as they concerned the same point. It was contended on the appellants' behalf that s 126A(1)(a) did not provide for a mandatory sentence and that they had accordingly been sentenced on an incorrect basis.

Held (per Smalberger JA, Corbett CJ and Nicholas AJA concurring, Botha JA and Kumleben JA dissenting), that the intention of the Legislature as expressed in the words 'liable on conviction to imprisonment for a period one-and-a-half times as long as the aggregate of all periods of I service mentioned in s 22(3)... or for a period of 18 months, whichever is the longer' as used in s 126A(1)(a) did not evidence an intention by the Legislature to impose a mandatory sentence: if the Legislature had intended to do so it would not have used the expression 'liable to', which was indicative of the accused being exposed to the court's discretion.

Held, further, that s 283 of the Criminal Procedure Act 51 of 1977 was in any event applicable to a sentence imposed in terms of s 126A(1)(a) of the Defence Act. In terms of the former section the sentencing court J had in addition the discretion to

1990 (2) SA p803

A impose a lesser sentence: the court's power to impose a lesser sentence was not ousted by s 283(2), which precluded the court from imposing a lesser sentence where a minimum penalty was prescribed, as the sentence prescribed by s 126A(1)(a) was not a 'minimum penalty'.

Held, further (per Smalberger JA, Corbett CJ and Nicholas AJA concurring), that, as s 126A(1)(a) of the Defence Act did not prescribe a minimum sentence, the provisions of s 297(1)(b) of the Criminal Procedure Act 51 of 1977 were applicable and there were no provisions in B the Defence Act which either expressly or by necessary implication excluded the provisions of s 297(1)(b) of the Criminal Procedure Act.

Held, therefore, that the whole or any part of a sentence imposed in terms of s 126A(1)(a) of the Defence Act could be suspended.

Held, further, that, where such a sentence or a part thereof was suspended, great care would have to be taken when formulating the C conditions of suspension, lest inappropriate conditions defeated the very purpose of suspension: where a person steadfastly refused to render military service on the grounds of conscience and was prepared to undergo incarceration for the sake of his convictions, a condition of suspension (assuming suspension to be appropriate in such circumstances) that he rendered military service or did not again contravene s 126A(1)(a) of the Defence Act would serve no purpose; these would be usual conditions of suspension, but the fact that they were D inappropriate would not per se render suspension impermissible as the court could suspend any sentence, or part thereof, on other appropriate conditions, including the condition that the person concerned rendered community service.

Held, further (per Kumleben JA, having concurred in the dissenting judgment of Botha JA that a sentence imposed in terms of s 126A(1)(a) of the Defence Act was a mandatory sentence), that such a sentence was capable of suspension and could be wholly suspended: there was nothing E in s 126A(1) of the Defence Act which expressly or impliedly precluded the right to suspend conferred in s 297 of the Criminal Procedure Act (Botha JA dissenting).

Held, accordingly, that the appeals had to succeed and the sentences of both appellants set aside: in the case of T the Court a sentence of nine months' imprisonment (which was the period that T had already served) should be imposed and in the case of B the matter should be remitted to the trial court for the question of an appropriate sentence to be F considered afresh.

The decision in the Cape Provincial Division in S v Toms 1989 (2) SA 567 reversed.

Case Information

Two appeals heard together for the sake of convenience, one from a decision in the Cape Provincial Division reported at 1989 (2) SA 567 (Nel J and Foxcroft J) and the other in the Witwatersrand Local Division G (M J Strydom J and Coetzee J). The facts appear from the judgment of Smalberger JA.

D P de Villiers QC (with him E Cameron) for the appellant in the Toms appeal referred to the following authorities: S v Nel 1987 (4) SA 950 (W) at 958C, 960I and 961G; S v Nshanganse 1963 (4) SA 345 (N) at 347A; H Dictionary of English Law 2nd ed (1977); The Concise Oxford Dictionary; R v Ndhlovu 1956 (4) SA 309 (N); R v Kalna 1958 (3) SA 123 (N); R v Hlongwene 1956 (4) SA 160 (T); R v Jeje 1958 (4) SA 662 (O); R v Cupido 1961 (1) SA 200 (C); R v Fredericks 1923 TPD 350; R v Deuchers 1924 TPD 20; R v Robin 1926 TPD 445; S v Lewis en 'n Ander 1985 (4) SA 26 (T); Du Plessis v Joubert 1968 (1) SA 585 (A) at 594 - 5; Ebrahim v Minister of I the Interior 1977 (1) SA 665 (A) at 678; Pick 'n Pay Retailers (Pty) Ltd v Minister of Mineral and Energy Affairs 1987 (2) SA 865 (A) at 876; Summit Industrial Corporation v Claimants against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A) at 596 - 7; Boland Bank Bpk v Picfoods Bpk en Andere 1987 (4) SA 615 (A) J at 630 - 1; Walker v Carlton Hotels (SA) Ltd 1946 AD 321

1990 (2) SA p804

A at 330; Barkett v SA National Trust & Assurance Co Ltd 1951 (2) SA 353 (A) at 363F - G; Steyn Die Uitleg van Wette 5th ed (1981) at 157 - 9; R v Hildick-Smith 1924 TPD 69 at 81; Bennion Statutory Interpretation (1984) at 237 - 9; Minister of the Interior v Machadodorp Investments (Pty) Ltd and Another 1957 (2) SA 395 (A) at 405; More v Minister of Co-operation and Development and Another 1986 (1) SA 102 (A) at 115C - D; Mureinik B 'Administrative Law in South Africa' (1986) 103 SALJ 615 at 619 - 26; Du Plessis The Interpretation of Statutes (1986) 38 - 9; R v Silinga 1957 (3) SA 354 (A) at 359A; S v Moroney 1978 (4) SA 389 (A) at 408H - 409A; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 at 552; R v Milne and Erleigh (7) 1951 (1) SA 791 (A) at 823A - F; S v Sparks NO and Others C 1980 (3) SA 952 (T) at 957 - 8; Principal Immigration Officer v Buhla 1931 AD 323 at 336; R v Sachs 1953 (1) SA 392 at 399 - 400; De Bruin v Director of Education 1934 AD 252 at 258; Lenz Township Co (Pty) Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A) at 455; Minister of Law and Order v Hurley and Another 1986 (3) SA 568 (A) at 584; R v Mapumulo and Others 1920 AD 56 at 57; R v S 1958 (3) SA 102 (A) at 104; S v Letsoko D and Others 1964 (4) SA 768 (A) at 777; S v M 1976 (3) SA 644 (A) at 648 - 9; S v Pieters 1987 (3) SA 717 (A); S v Mpetha 1985 (3) SA 702 (A) at 710E; S v Gibson 1974 (4) SA 478 (A) at 482A - B; S v Nel 1987 (4) SA 950 (W) at 961B - C; Gardiner and Lansdown South African Criminal Law and Procedure vol 1 5th ed (1946) at 530 - 1; 6th ed (1957) at 686; Hiemstra E Suid-Afrikaanse Strafproses 4th ed (1987) at 644.

W C Viljoen for the State in the Toms appeal referred to the following authorities: Farrars Estate v Commissioner for Inland Revenue 1926 TPD 501; R v Westenraad 1941 OPD 105; Attorney-General v Additional Magistrate, Johannesburg 1924 AD 436; Lloyd's Trustee v Kimberley F Licensing Board 1930 GWL 17; S v Looij 1975 (4) SA 703 (RA); R v Hlongwene 1956 (4) SA 160 (T); S v Nel 1987 (4) SA 850 (W); S v Lewis en 'n Ander 1985 (4) SA 22 (T); Steyn Die Uitleg van Wette 5th ed; Du Plessis The Interpretation of Statutes.

E Cameron for the appellant in the Bruce appeal referred to the following authorities: Dadoo Ltd v Krugersdorp Municipal Council 1920 AD G 530 at 552; R v Mapumulo and Others 1920...