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South Africa: High Court, Northern Cape Division, Kimberley
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[2015] ZANCHC 42
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Barker v S (35/2015) [2015] ZANCHC 42 (27 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
35/2015
DATE
DELIVERED:
27/11/2015
In
the matter between:
ROGER
BARKER
Appellant
and
THE
STATE
Respondent
Coram:
Olivier J
et
Pakati, J
JUDGMENT
Olivier
J:
[1.]
The accused in this matter was convicted on two counts, one of
assault and one of assault with intent to cause grievous bodily
harm.
On the two counts taken together he was sentenced to “
6
months
imprisonment
or
a
R1,000.00
fine
which
is
wholly
suspended
for
a
period
of
3
years
on
condition
Accused
is
not
convicted of assault with intent to do
grievous bodily harm
”.
[2.]
As he was represented at the trial the matter is not automatically
reviewable.
It has,
however, been submitted for special review in terms of Section 304(4)
of
the
Criminal
Procedure Act
[1]
.
The Magistrate has correctly pointed out that the
condition
of
suspension
of
the
sentence
did
not
qualify
and
restrict
it
to
a
contravention
committed during the period of suspension.
[3.]
In my view the sentence of imprisonment should also have been an
alternative
to the
sentence of a fine, and not the other way around
[2]
.
[4.]
Otherwise the sentence is in my view in accordance with justice, and
so are the convictions.
[5.]
The following orders are therefore made:
1.
THE CONVICTIONS ARE CONFIRMED.
2.
THE SENTENCE IS AMENDED TO READ AS FOLLOWS:
“
A
FINE
OF
R1,000.00
OR
6
MONTHS
IMPRISONMENT, WHOLLY SUSPENDED FOR A
PERIOD
OF
3
YEARS
ON
CONDITION
THAT
THE
ACCUSED
IS
NOT
CONVICTED
OF
ASSAULT
WITH
INTENT TO CAUSE GRIEVOUS BODILY HARM
COMMITTED DURING THE PERIOD OF SUSPENSION.
”
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree and it is so ordered.
____________________
B
M PAKATI
JUDGE
NORTHERN
CAPE DIVISION
[1]
51 of 1977
[2]
Compare Section 287(1) of the
Criminal
Procedure
Act