IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE REV. CASE NO. 29/95
In
the matter of:
THE
KING
vs
BHEKI
NSIBANDE
DISTRICT
OF LUBOMBO
17TH
MAY 1995
ORDER
ON REVIEW
The
accused in this case which came before me on review was charged with
and convicted of the theft of a motor vehicle in contravention of
Section 3(1) of the Theft of Motor Vehicles Act 16/1991 (the Act).
The accused was sentenced as follows -
three
years imprisonment which will be suspended for the entire period on
condition that the accused commits no offence of which theft is a
constituent element.
Section
14(2) of the Act provides
No
sentence or part of a sentence under this Act may be suspended.
2
-
2 -
The
Acting Senior Magistrate Mr. Bwonwonga was in the light of section
14(2) requested to give reasons for the suspended sentence. He has
replied as follows -
The
reasons for the suspended sentence appear at pages 13 and 14 of the
typed Record. Of these reasons, the epileptic condition of the
accused weighed heavily on my mind. The provisions of section 14 of
the Theft of Motor Vehicles Act No. 16/1991 were not brought to my
attention before
passing
of sentence.
The
Acting Senior Magistrate has not indicated what his approach would
have been had the provisions of the section been brought to his
attention. The proper approach in my view is to remit the case to the
Acting Senior Magistrate to pass sentence afresh taking into account
(a) The
minimum sentence provided for under section 3(1) of the Act and
(b) The
provisions of section 14(2) of the Act.
That
is the order I make. The accused is to be brought before the acting
Senior Magistrate and the case is to be resubmitted on review after
sentence is passed. In conclusion, I should point out that it is the
function of a presiding officer to satisfy himself with regard to his
powers as to sentence in cases of statutory contraventions.
B.
DUNN
ACTING
CHIEF JUSTICE
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