About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 369
|
|
Phungula v S (A309/2016) [2016] ZAGPPHC 369 (23 May 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number:A309/2016
DATE:
23 MAY 2016
In
the matter between:
CELUMUSA
PHUNGULA
…...........................................................................................
APPLICANT
Versus
THE
STATE
...................................................................................................
RESPONDENT
REVIEW
JUDGMENT
BRENNER
AJ
[1]
This matter came before me by way of automatic review, in terms of
section 302
of the
Criminal Procedure Act, 51 of 1977
.
[2]
The accused was charged before the Vereeniging Magistrates’
Court with malicious damage to property and assault. It was
alleged
by the State that, on 28 January 2016, near Wheilers Farm, Emfuleni,
the accused had intentionally damaged a Samsung cell
phone valued at
R1 000,00, belonging to the complainant, Nontobeko Ngema. It was
further alleged that he had assaulted the complainant
by hitting her
with open hands.
[3]
The accused was not legally represented at the trial. He pleaded not
guilty and was convicted on both counts and sentenced on
23 March
2016.
His sentence was, for the count of malicious damage to property,
R1000,00 or 3 months’ imprisonment, and on the count
of
assault, a fine of R2 000,00 or 4 months’ imprisonment. The
effective sentence was therefore R3 000,00 or 7 months’
imprisonment.
[4]
Albeit that the complainant was a single witness for the State, her
evidence was consistent and reliable in all material respects.
She
testified that the accused had confronted her on the day at around
15h00 along the road in the neighborhood where both she
and the
accused lived. He blocked her way, telling her he wanted to see her
that evening. He was romantically interested in her.
When she asked
him to move away, he slapped her with an open hand and pushed her. He
took her cell phone and threw it on the ground.
She had not repaired
it and was unable to use it. She testified that this was not the
first time the accused had assaulted her.
[5]
In testifying in his own defence, the accused maintained that he had
only “poked at” the complainant and that he
had not taken
her phone. Under cross-examination, he conceded that he may have
assaulted the complainant with his fist.
[6]
I am satisfied that the accused was correctly convicted. The
complainant’s evidence was credible and plausible, while
the
accused’s
evidence
that he was being framed by the complainant was improbable. His
concession concerning assaulting the complainant with his
fist was
significant.
[7]
Concerning sentence, however, I respectfully consider same to be
shockingly inappropriate and plainly not in accordance with
justice.
The accused was a first offender. The accused testified in mitigation
that he was 29 years of age, with no children. He
performed temporary
work on building sites and earned about R600,00 per week. He lived
with his mother and 2 siblings. He had a
grade 10 education. He was
pertinently asked if he could pay a fine and he replied that he could
afford a fine of R300,00. He said
he wanted to become a security
guard.
[8]
I align myself with the statement in S v Sithole
1979 (2) SA 67
(A)
at page 69 G:
“
When
a Court has decided that a convicted person ought to be afforded the
opportunity of staying out of jail by giving him the option
of paying
a fine, it should not impose a fine which to its knowledge or belief
is utterly beyond the means of such person to pay.
”
[9]
Considering that the evidence indicated that the accused earned about
R2 400,00 per month, the trial Court should have appreciated
that a
fine of
R3000,00
was outside the bounds of his financial capabilities. Moreover, in
casu, the value of the damaged phone was R1000, 00,
and no serious
physical harm was caused to the complainant. On her version, she was
slapped in the face. Bearing in mind all mitigating
factors,
including that the accused was a first offender, a suspended sentence
should have been imposed. Since both counts involved
one incident,
they should be taken together for purposes of sentence.
[10]
I would make the following order:
[10.1]
The sentence is set aside;
[10.2]
On both counts 1 and 2, taken together for purposes of sentencing,
the accused is sentenced to six months’ imprisonment,
wholly
suspended for 5 years on condition that he is not found guilty of
malicious damage to property or assault, committed during
the period
of suspension.
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
C
PRETURIUS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.