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2018
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[2018] ZAFSHC 178
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S v Sinabyoni (R282/2018) [2018] ZAFSHC 178 (28 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R282/2018
In
the matter between:
THE
STATE
State
And
SIMPHIWE
SIBANYONI
Defence
CORAM:
MHLAMBI, J
et
MOLITSOANE
J
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
28 November 2018
REVIEW
JUDGMENT
Mhlambi,
J
[1]
This matter came before us on review in terms of section 302 of the
Criminal Procedure Act 51 of 1977 (the CPA) in the ordinary
course.
[2]
The accused was charged with the offence of assault with the
intention to cause grievous bodily harm. He pleaded guilty to the
charge and was sentenced to 12 months’ imprisonment in terms of
section 276 (1)(b) of Act 51 of 1977. He was further declared
unfit
to possess a firearm in terms of section 103 (1) of Act 60 of 2000,
the Firearms Act.
[3]
The proceedings did not appear to be in accordance with justice with
the result that I sent a query to the magistrate wherein
I asked the
following:
“
Did the accused
admit that he had the necessary intent to do grievous bodily harm in
the light of his answers contained in lines
5 to 15 on page 8 of the
record and that he never thought that it will be something like
that.”
[4]
The response from Mr C Coetzee, the acting magistrate, was contained
in her letter of 22 November 2018 which reads as follows:
“
In response to
your query dated 30 October 2018 I respectfully respond as follows
1.
Having perused the
record I am constrained to concede that the accused did not admit the
necessary intention to do grievous bodily
harm.
2.
Under the circumstances,
the aspects of intention should have been clarified through further
questioning by the court. The court
erroneously focused on the
evidence regarding the weapon used, the injuries sustained and where
on the body the assault was perpetrated
to infer the intention to
cause grievous bodily harm, whereas the evidence solicited by the
court’s questioning should only
have sustained a conviction on
the competent and lesser offence of assault. S v Jan Pieterse
R169/2018 FHSC.
3.
The oversight is
regretted and I respectfully request that the Honourable Reviewing
Judge set aside the conviction and substitute
it with a conviction of
assault.”
[5]
The charge preferred against the accused is that on 12 October 2017
and at or near Mangaung Group 4 prison in the magisterial
district of
Bloemfontein the accused did unlawfully and intentionally assault one
Shaun Bentley by stabbing him with a broken bulb
(globe) piece with
intent to do him grievous bodily harm. During the questioning of the
accused by the presiding officer in terms
of
section 112
(2) of the
Criminal Procedure Act the
accused stated that he once had a quarrel
with the said Shaun. On the day in question, Shaun was seated with
his back towards the
accused in the company of other people within
the prison precinct, busy on a computer when the accused stabbed him
with a light
bulb.
[6]
As he stabbed him, he told himself that Shaun would only”
get
hurt a bit
”. He never
thought that he would be hurt very badly. The J88 document or
medico-legal examination report indicated that the
complainant
sustained a laceration on the right posterior side of the neck as a
result of the stabbing. He therefore sustained
a soft tissue injury.
[7]
The accused is a sentenced prisoner, currently serving 15 years’
imprisonment, having been sentenced during 2013 for rape.
He will be
eligible for parole in 2020. No other previous convictions were
proven against the accused. He is 39 years old and is
survived by his
mother. No other mitigating circumstances were presented to the
court.
[8]
I am satisfied and am in agreement with the presiding magistrate that
the accused is indeed guilty of the crime of assault.
Having perused
the record in respect of the sentence and the circumstances of this
case, I am of the view that both the conviction
and sentence should
be set aside and that the following order is appropriate:
1. Both conviction and
sentence are hereby set aside and are substituted with the following:
1.1 The accused is found
guilty on assault and sentenced to 6 months imprisonment in terms of
section 276
(1) (b) of Act 51 of 1977;
1.2 An order in terms of
section 103
(1) of the
Firearms Control Act 60 of 2000
is confirmed.
_____________
MHLAMBI,
J
I
concur
_______________
MOLITSOANE,
J