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[2015] ZAGPPHC 85
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S v Maleleki (A80/15) [2015] ZAGPPHC 85 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A80/2015
Date: 17 February
2015
HIGH COURT REFERENCE
NUMBER: 833/2014
MAGISTRATE’S
SERIAL NUMBER: G151/2014
MAGISTRATE’S
CASE NUMBER: 8/2014
THE STATE vs ANDRIES
MALELEKI
REVIEW JUDGMENT
PRETORIUS J.
[1] This matter was
placed before the court as a special review in terms of section
304(4) of Act 51 of 1977 on the basis that the
trial magistrate
erroneously imposed a wrong period of suspension of the sentence as
imposed on the accused.
[2] The accused was
convicted in the Magistrate’s Court, Groblersdal of assault
with the intent to cause grievous bodily harm.
He was sentenced to 12
months imprisonment, half of which was suspended for 6 months on the
normal conditions of suspension.
[3] The accused had
pleaded guilty to the charge. He is a first offender, 29 years of age
and has passed grade 8. His child, aged
12 years, is living with her
mother. The accused is unemployed and therefore unable to pay a fine.
[4] The complainant
was injured by stones thrown at him by the accused. No evidence was
lead as to the complainant’s injuries.
[5]
In
S
v Ndaba 1993(2) SACR 633 (A)
Kriegler
AJA held at p639 a - b that:
“
Nietemin
wil dit tog voorkom dat daar dikwels onoorwoë ‘n termyn
van vyf jaar vasgestel word. Daarom dien beklemtoon
te word dat
bepaling van die opskortingstermyn dee! van die straftoemeter se
vonnisevaluering uitmaak en net soseer regterlikheid
verg as die
ander komponente van die vonnis:”
In this instance the
accused is 29 years old. He reacted out of anger, but is remorseful
and pleaded guilty.
[6] The Director of
Public Prosecutions suggested that the sentence be set aside and a
suspended period of three years be considered.
[7] I have read the
record and proceedings, the magistrate’s comments as well as
the comments of the Director of Public Prosecutions.
In the present
circumstances a period of suspension of three years will be fair.
The order:
1. The sentence
imposed on 21 May 2014 by Additional Magistrate Ledwaba is set aside;
2. The accused is
sentenced to twelve (12) months imprisonment of which 6 months are
suspended for (3) three years on condition
that the accused is not
convicted of assault with intent to do grievous bodily harm, or
assault committed during the period of
suspension.
3. The date of
sentence is ante-dated to 21 May 2014
C PRETORIUS
JUDGE OF THE HIGH
COURT
I AGREE:
R G TOLMAY
JUDGE OF THE HIGH
COURT