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2016
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[2016] ZAFSHC 126
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National Director of Public Prosecutions v M and Others (A49/2016) [2016] ZAFSHC 126 (4 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: A49/2016
In
the matter between:
THE
STATE
and
JOSEPH
BOTMAN MOKONE
CORAM:
JORDAAN,
J
et
ZIETSMAN,
AJ
JUDGMENT
BY:
ZIETSMAN,
AJ
DELIVERED
ON:
4
AUGUST 2016
[1]
This is an automatic review emanating from the magistrate of
Bothaville, where the accused was found guilty on a charge of
malicious injury to property and sentenced to three years
imprisonment which is suspended for 5 years on condition that the
accused
is not convicted of malicious injury to property committed
during the period of suspension.
[2]
The accused is a 43 year old male person who was convicted on the
charge as referred to above on the basis that he damaged the
property
of the complainant, being a window pane on 20 December 2015 at
Khotsong in Bothaville.
[3]
Reasons were requested by C D Pienaar AJ as well as Mhlambi AJ, which
mainly questioned the sentence which was imposed, and
it was required
from the magistrate to indicate why the sentence must not be regarded
as shockingly inappropriate especially in
the light of the amount of
the damage that was caused being R24,60.
[4]
In his reasons the magistrate indicated that the accused had a long
list of previous convictions, and although most of them
are more than
10 years old, at least two previous convictions are less than 10
years old, being for theft where the accused was
sentenced to R900 or
3 months imprisonment and 1 previous conviction of assault committed
on 12 September 2013 where the accused
was sentenced to 3 years
imprisonment suspended for three years on certain conditions.
[5]
The magistrate also indicated that the fact that the accused had
various previous convictions, as well as one previous conviction
which is similar to the present offence, and although that previous
conviction was committed more than 10 years ago, had a bearing
on the
present imposed sentence. The aforesaid being the reason why he
suspended the whole sentence.
[6]
Bearing in mind the damage which was caused in this matter, as well
as the fact that the only relevant previous conviction was
also
committed more than 10 years ago, I am of the view that the sentence
imposed, although suspended wholly, is still shockingly
inappropriate
in the circumstances.
[7]
I therefore make the following order:
1.
The
conviction is confirmed;
2.
The
sentence is set aside and the matter is re-admitted to the magistrate
for sentencing the accused afresh.
_________________
P.
ZIETSMAN,
AJ
I
concur.
_________________
A.F.
JORDAAN, J
/eb