The State v Nicolas Tierspoor.pdf - Superior Courts of Namibia

CASE NO. CR 29 /2010IN THE HIGH COURT OF NAMIBIAIn the matter between:THE STATEversusNICOLAS TIERSPOORACCUSEDHIGH COURT REVIEW CASE NO. 1562/2009CORAM:VAN NIEKERK,J et SWANEPOEL,JDelivered on: 28 May 2010______________________________________________________________________REVIEW JUDGMENT______________________________________________________________________SWANEPOEL,J.: [1] The accused in this matter was charged with the crime oftheft. He pleaded guilty and was duly convicted of theft. His sentence reads as follows:“Six hundred Namibian dollars (N$600.00) or six (6) monthsimprisonment wholly suspended for four (4) years on condition that theaccused is not convicted of the offence of theft or an offence with theelement of theft committed during the period of suspension.”

(The emphasis is mine.)2[2] I enquired from the learned magistrate what is to be understood with the words inbold supra to which she replied as follows: “I meant the following:The elements of theft apply in all case where theft is alleged. Theft isa competent verdict on the offence of robbery, housebreaking with theintent to steal and theft and fraud alternatively theft. A theft must thusbe proved. Considering the abovementioned, it was my intention thatthe condition of suspension would serve as a yardstick to dissuade theoffender from further crime of same nature.”[3] In a composite judgment in four review cases to wit:The State v Tina Damases(High Court Review case 2146/08)The State v Petrus Geiseb(High Court Review case 2149/08)The State v Daniel Tsauseb(High Court Review case 2150/08) andThe State v Klaus Haufiku Shikwaya(High Court Review case 2151/08) Van Niekerk J with whom Muller J concurred saidinter alia the following:“It has been stated in several cases that the conditions of a suspendedsentence should be clear so that the accused, who is usually a layperson, may understand them.After all, the very purpose of asuspended sentence is to regulate the future conduct of the accused,being like the Sword of Damocles hanging over his head. It is also

3necessary that a subsequent Court, when called upon to bring intooperation a suspended sentence, has a clear understanding of themeaning of the condition of suspension.When conditions areformulated as in the case under review, the assumption is that theaccused will know when an offence „involves‟ assault, orhousebreaking, or theft, etc. Sometimes this may be very clear, evento a lay person, but very often it may not be. So, for instance, it maynot be clear to a lay man that robbery consists of both assault andtheft.”……….The word „involves‟ supra can in the matter in casu be substituted with thewords „with an element of‟.[4] I am in respectful agreement with the above and am of the view that the words„or an offence with the element of theft‟ in the conditions of suspension should bedeleted so that there can be no doubt and the condition of the suspension be clear andeasily understood by the accused.[5] In the result the conviction is confirmed and the sentence is amended to read asfollows Six Hundred Namibian Dollars (N$600.00) or six (6) months imprisonmentwholly suspended four (4) years on condition that the accused is not convicted of theoffence of theft committed during the period of suspension.