SWAZILAND HIGH COURT
Mamba Paulos Mfanawendlela
Crim. Review Case No. 189/2000
The accused was charged in the subordinate court of the District of HHOHHO held at Mbabane. He appeared before the Magistrate L.L. Hlophe. The charge which he faced was that he was guilty of the crime of housebreaking and theft. It was particularized that in on about 4th July, 2000 at or near Ezulwini in the Hhohho District the said accused did wrongfully and unlawfully and intentionally break and enter the house there situate through the kitchen window and steal items (see attached list) being the property of and in lawful possession of Teresa Fikile Mdluli valued at E5 985.00.
The evidence clearly established the breaking and entering as well as the theft of the items alleged. It also appears from the evidence that the accused person was in possession of and disposed of some of the items to a number of witnesses shortly after the occurrence. The Magistrate correctly inferred that the accused had committed the offence and that he was the person who broke into the premises and stole all the items alleged.
Upon conviction the Magistrate passed sentence reading as follows:
The sentence also does not describe the conditions of the suspension as required by law. The Magistrate should in such matters order that the sentence or portion thereof is suspended for a named period on condition that the accused person is not hereafter found guilty of an offence committed during the period of the suspension.
The type of conviction of which will result in the suspension being withdrawn ought to be described in greater detail. It must be noted that it is not the offence which involves theft, as it is the offence an element of which is dishonesty and theft.
These defects are drawn to the attention not only of the Magistrate concerned but to all Magistrates. In the result the sentence will be altered to read as follows:
“2(two) years imprisonment without the option of a fine, of which 1(one) of imprisonment is suspended for three years on condition that the accused is not hereafter found guilty of an offence of which dishonesty or theft is an element committed during the period of suspension.”