Radzilane v The State

The applicant pleaded guilty in the regional court, Makhado, to one count of theft after unlawfully withdrawing R560 000 from ABSA Bank clients’ accounts while employed by the bank between September and October 2008. He was sentenced under s 297 of the Criminal Procedure Act 51 of 1977 to seven years’ imprisonment, wholly suspended for five years on condition, inter alia, that he repay the stolen amount in instalments. He made partial repayment but later defaulted. The State applied to have the suspended sentence put into operation. Instead of enforcing or further suspending the original sentence, the regional court imposed a new sentence of three years’ imprisonment under s 276(1)(i) of the CPA, which the applicant served in full. The State appealed, and the High Court set aside the new sentence, finding it incompetent, and remitted the matter to the trial court to consider enforcement of the suspended sentence. The applicant sought special leave to appeal to the Supreme Court of Appeal.

Special leave to appeal was granted, but the appeal was dismissed. The High Court’s order setting aside the new sentence and remitting the matter to the trial court to consider enforcement or further suspension of the original suspended sentence stood.

The case authoritatively clarifies that sections 297(7) and (9) of the Criminal Procedure Act do not allow a court to impose a new or substitute sentence when a suspended sentence is breached. It reinforces the principle of legality in sentencing and delineates the limited options available to courts when dealing with non-compliance with suspended sentence conditions.