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South Africa: North Gauteng High Court, Pretoria
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[2015] ZAGPPHC 354
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Maluleke v S (A326/15) [2015] ZAGPPHC 354 (21 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A326/15
CASE
NO: A54/15
DATE:
21 MAY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
DOUGLAS
MALULEKE
....................................................................................................................
Accused
and
THE STATE
JUDGMENT
Tuchten
J
:
1. This matter came
before me on automatic review. The accused was convicted in the
magistrate’s court with the crime of assault
with intent to
cause grievous bodily harm. It was alleged that the accused, a 19
year old first offender, had assaulted the 21
year old male
complainant by hitting and kicking him and “batting him with a
hat”.
2. The accused
pleaded guilty but, on questioning by the magistrate, it emerged that
while he admitted inflicting the violence alleged
upon the
complainant, as a result of which the complainant lost two teeth, the
accused claimed that he had acted in self-defence.
The magistrate
then properly entered a plea of not guilty but after evidence had
been led, rejected the allegation of self-defence
and convicted the
accused as charged.
3. In mitigation of
sentence, the accused told the magistrate that he did not have
parents and was not employed but lived with his
brother who supported
the family by doing piece jobs. The accused promised that he would
not offend again. The accused showed,
in my view, remorse.
4. The magistrate
sentenced the accused to as fine of R4 000 or two years imprisonment.
In his remarks on sentence, the magistrate
did not refer to the
personal circumstances of the accused or investigate his ability to
pay a fine. The magistrate focussed exclusively
on the severity of
the offence and observed that I was going to send you straight [to
prison] with no option of a fine. Maybe as
a first offender you might
repent and change.
The magistrate
explained to the accused that he was entitled to apply for a deferral
of payment, ie to be allowed to pay the fine
in instalments.
5. When the matter
came before me I had doubts about the appropriateness of the
sentence. I asked the magistrate for his views.
The magistrate
responded that he accepted that the accused was unable to pay a fine
but that it was a problem in his court that
offenders always said
they were unable to pay fines, even when able to do so. He pointed to
the disparity in physical strength
which he observed between the
accused and the complainant. The complainant, the magistrate
remarked, looked like a child in comparison
to the accused who was
well built for his age. He said that he would not have a problem if
the sentence were reduced in severity
but asked that the sentence
should not be wholly suspended as it would not have a deterrent
effect.
6. The crime was
committed in a rural context. This is relevant because I quite
strongly doubt that there would be enough work for
the accused’s
brother to raise what is in context a very large sum of money to keep
the accused out of jail. I take into
account too the views of the
magistrate in relation to the effect likely to be produced in the
community which the magistrate serves
by a wholly suspended sentence.
7. I sought and was
provided with the views of the DPP on the matter of an appropriate
sentence. The DPP cogently set out the principles
applicable to a
case such as the present. The DPP pointed out that when an accused is
afforded the chance to pay a fine, the fine
imposed should be within
the means of the accused and constitute a realistic option. That does
not mean that the fine must be within
the immediate financial means
of the accused, who may be expected to suffer some financial hardship
in order to raise the money
for the fine. On the other hand, a
serious crime (like the present) should not be made to look trivial
by the imposition of too
small a fine.
8. Balancing all
relevant considerations, the DPP suggests the sentence be reduced to
a fine of R2 000 or 6 months imprisonment,
half of which is suspended
on suitable conditions. I agree.
9. I make the
following order:
1. The conviction
imposed upon the accused is found to have been in accordance with
justice and is confirmed.
2. The sentence
imposed upon the accused is found not to have been in accordance with
justice. It is set aside and replaced with
the following:
The accused is
sentenced to pay a fine of R2 000 or, in default of such payment, to
suffer imprisonment for a period of six months.
Half of this sentence
is suspended for five years, on condition that the accused is not
convicted of an offence involving the use
of deliberate violence
committed during the period of suspension.
3. The sentence
imposed on review is antedated to 20 February 2015.
NB Tuchten
Judge of the High
Court
19 May 2015
EM Kubushi
Judge of the High
Court
19 May 2015