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[2015] ZAFSHC 170
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S v Tlaba (99/2015) [2015] ZAFSHC 170 (10 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 99/2015
DATE: 10 SEPTEMBER 2015
In the matter between:
THE STATE
And
SETLABOCHA PATRIC TLABA
JUDGMENT BY: MOKOENA, AJ
[1] The accused was charged in the
Marquard district court on a charge of assault with intent to do
grievous bodily harm. On 30
April 2015 the accused was convicted and
sentenced to 30 months imprisonment and 12 months thereof was
suspended for 5 years on
condition that the accused is not found
guilty of assault with intent to do grievous bodily harm committed
during the period of
suspension. The accused was not declared unfit
to possess a firearm.
[2] At the trial of this matter, the
accused elected to conduct his own defence. The matter has now been
referred to this court
as an automatic review in terms of section 302
of the Criminal Procedure Act, 51 of 1977 (“CPA”).
[3] Having perused the record of the
proceedings, this court addressed a query to the presiding magistrate
as follows:
“1. Considering that the accused
was fully employed and the sole bread winner at home, did the trial
court consider the following:
(a) a fine as an alternative to the
term of imprisonment imposed?
(b) any other appropriate sentence
including suspended sentence coupled with stringent conditions such
as compensation to the complainant
to enable her to undergo surgery
of her face and restorative justice etc?”
[4] In summary, the presiding
magistrate responded that in sentencing the accused, the court took
the following into account:
(a) The nature of the offence
In the case of R v Motlagomang
1958 (1)
SA 626
(TPD) at 628 – 629 the court held:
“A court must, in deciding upon
the appropriate sentence, take into account as one of the relevant
factors, the fact that
the crime of which an accused was convicted in
prevalent in its area.”
(b) The interests of the society
In R v Karg
1961 (1) SA 231
(A) on page
236 the following was said:
“It is not wrong that the natural
indignation of interested persons and of the community at large,
should receive some recognition
in the sentence that the courts
impose and it is not irrelevant to bear in mind that it is not
irrelevant to bear in mind that
if sentences for serious crimes are
too lenient, that the administration of justice may fall into
disrepute and injured persons
may be inclined to take the law into
their own hands.”
(c) The accused’s personal
factors
The following mitigating factors
regarding the accused’s personal circumstances were taken into
account: (a) the accused is
32 years old, (b) he is unmarried with no
children, (c) he is employed earning R3 000 per month, (d) he was the
breadwinner living
with his mother, brothers and sisters.
[5] The presiding magistrate also
indicated that the accused was not a first offender and that it was
an aggravating factor the
fact that the accused had previous relevant
records.
[6] The issue to be determined is
whether the sentence imposed on the accused is appropriate in the
circumstances.
[7] The accused had pleaded not guilty
to the charge of assault with intent to do grievous bodily harm. In
his plea explanation,
he said on the day in question he was at Zim’s
tavern but he does not have knowledge of the incident in that he was
under
the influence of alcohol.
[8] The complainant testified that on
14 February 2015 she was at Zim’s tavern and the accused
assaulted her without provocation.
The accused first hit her on the
head with a full bottle whereafter he broke the bottle and stabbed
her on the face and arm.
After stabbing her, the accused tried to
run away from the scene. The complainant sustained serious injuries
and the J88 medical
report confirm that she sustained a 7cm
laceration on the right cheek, a 3cm laceration on the right side of
the chin and multiple
superficial lacerations. The complainant
testified further that the accused was known to her having been
members of the same musical
choir.
[9] In applying the test stated in S v
Mapasa
1972 (1) SA 525
(D-E), having regard to (a) the nature of the
weapon used and in what manner it was used, (b) the degree of force
used and how
such force was used, (c) the part of the body aimed at
and (d) the nature of the injury sustained by the complainant. I am
satisfied
that the trial court was correct in rejecting the accused’s
defence of having been under the influence of alcohol and concluding
that the accused had the necessary intent to inflict grievous bodily
harm on the complainant.
[10] In S v Khumalo
[1984] ZASCA 30
;
1984 (3) SA 327
(A)
the court said:
“In the assessment of an
appropriate sentence, regard must be had inter alia to the main
purpose of punishment, namely deterrent,
preventative, reformative
and retributive. Deterrence has been described as the essential all
important paramount and universal
object of punishment”
[11] I have concluded that the accused
was correctly convicted. I am not satisfied that the sentence is
appropriate in the circumstances.
As indicated by this court’s
query, the trial court (a) failed to investigate other sentence
options such as a fine as an
alternative to the term of imprisonment
and (b) any other appropriate sentence including suspended sentence
coupled with stringent
conditions such as compensation of the
complainant to enable her to undergo surgery on her face.
[12] It is clear from the J88 medical
report that the accused has inflicted serious injuries on the
complainant resulting in her
disfigurement. I have no doubt that the
complainant will not benefit from the lengthy imprisonment imposed on
the accused. However,
I am of the view that a monetary compensation
will go a long way in contributing towards her healing process. The
complainant
will need to undergo plastic and reconstructive surgery
in order to improve the unsightly scars on her face and this comes at
a
cost.
[13] The accused earns R3 000,00 per
month and making him pay part of his salary to the victim to enable
her to undergo surgery
and pay the medical expenses will in my view,
restore her dignity and such sentence will meet the justices of this
matter.
[14] It will not serve any purpose to
refer this matter back to the trial court for the proper evaluation
of an appropriate sentence.
This court is in a position to impose an
appropriate sentence in that there is evidence regarding the nature
of the injuries sustained
by the complainant.
[15] It is accordingly ordered that the
sentence imposed on the accused is hereby set aside.
[16] The following sentence is imposed:
(a) The accused is sentenced to 30
months imprisonment wholly suspended for a period of 5 years on
condition that the accused is
not found guilty of assault or
non-compliance with the conditions of this sentence as contained in
below;
(b) Accused must pay an amount of R30
000,00 (thirty thousand rand only) payable in monthly instalments of
R1 000,00 with effect
from 7 October 2015 and whereafter on or before
the 7 of each succeeding month until the whole amount is paid in
full.
R. MOKOENA, AJ