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South Africa: Free State High Court, Bloemfontein
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[2014] ZAFSHC 135
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S v M (152/2014) [2014] ZAFSHC 135 (4 September 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: 152/2014
In
the review between:
THE
STATE
versus
N[…]
P[…] M[…]
REVIEW
JUDGMENT
CORAM:
KRUGER, J
et
WRIGHT,
AJ
JUDGMENT
BY:
WRIGHT, AJ
DELIVERED
ON:
4 SEPTEMBER 2014
[1]
This is a special review under
section 304(4)
of the
Criminal
Procedure Act 51 of 1977
. The Accused was charged with common
assault. He pleaded guilty.
[2]
The presiding magistrate was of the opinion that the offence did not
merit direct imprisonment or a fine exceeding R 5 000.00.
The
magistrate proceeded in terms of
section 112(1)(a)
of the
Criminal
Procedure Act and
convicted the Accused of assault as charged.
[3]
The Accused was sentenced to three months’ imprisonment, wholly
suspended for 3 years on condition that he is not convicted
of
assault or assault with intent to commit grievous bodily harm
committed during the period of suspension. The Accused was not
legally represented during the trial proceedings.
[4]
The Accused elected not to call any witnesses in mitigation of
sentence. In his address before sentencing, the Accused placed
his
personal circumstances on record. The complainant is his wife. The
assault followed on a verbal confrontation between the complainant
and the Accused. He hit her on the head four of five times with a
bottle. The children were not present. The prosecutor accepted
the
version of the Accused, but placed on record that, according to the
complainant, the youngest child of the complainant and
the Accused
was present during the fight, and that the complainant applied for a
protection order.
[5]
The sentence imposed by the magistrate provides for direct
imprisonment albeit suspended. It does not provide for a fine.
[6]
The magistrate should have proceeded under
section 112(1)(b)
instead
of
section 112(1)(a).
The circumstances called for questioning of the
Accused as there appears to have been doubt about the seriousness of
the transgression.
No information regarding the nature and extent of
the complainant’s injuries was placed before the trial court.
The charge
sheet does however refer to blows to the complainant’s
head. The fair administration of justice called for an inquiry.
[7]
I am of the view that it would not serve the interests of justice to
refer the matter back to the court
a quo
in order to comply with the provisions of
section 112(1)(b).
The
Accused clearly intended to plead guilty and presented his version of
events during argument.
[8]
The facts as placed before the trial court show a measure of
provocation leading to the assault on the complainant. The Accused
is
a first offender. He is 31 years old and supports his wife and two
children. A suspended sentence is called for and should include
the
option of a fine.
ORDER
[9]
In the result the following order is made:
1.
The conviction is confirmed;
2.
The sentence imposed in the court
a
quo
is set aside and replaced with the
following:
“
The
Accused is sentenced to a fine of R 500.00 or three months
imprisonment, wholly suspended for three years on condition that
the
Accused is not convicted of assault or assault with intent to do
grievous bodily harm committed during the period of suspension.”
________________
G.J.M. WRIGHT, AJ
I
concur.
____________
A.
KRUGER, J