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[2013] ZAGPPHC 40
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S v Ngwenya and Another (A93/13) [2013] ZAGPPHC 40 (11 February 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO:A93/13
Magistrate:NSIKAZI
Review Case no.: A551/2012
High
Court Ref. No.: 1246
DATE:11/02/2013
THE STATE VS REMEMBER NGWENYA &
ANOTHER
REVIEW JUDGMENT
WEBSTER
J
1.
The two accused were convicted in the Magistrate’s Court,
Kabokweni, of assault with the intent to do grievous bodily harm
and
sentenced to a fine of three thousand Rand (R3000) or six (6) months’
imprisonment wholly suspended for three (3) years
on condition that
they were not convicted of assault to do grievous bodily harm
committed during the period of suspension. The
matter is before this
court on automatic review.
2.
Accused 1 pleaded guilty to the charge but upon questioning by the
Court the plea was changed to that of not guilty. Accused
2 pleaded
not guilty.
3.
It was common cause that the incident followed upon a soccer match at
which the complainant’s team ‘won' the prize
money. A
dispute arose from this. The accused who were officials of the losing
club approached the complainant demanding that he
hand over the
money. Accused 1 had an open okapi knife and stabbed the complainant
between the shoulder blades.
4.
The complainant attended the Themba Hospital. The J85 form completed
by the doctor who attended the complainant indicates that
the
complainant sustained a one (1) centimetre injury “...on the
left shoulder. On the schematic figurine on the J88 form
the injury
is depicted on the outer left side arm in line with the left nipple
and not between the shoulder blades.
5.
It is my considered view that the conviction was correct. The only
problem I have is with the sentence imposed by the trial Court.
Before dealing with that issue I wish to preface it with an
observation that has been noticeable in the fines imposed by the
Magistrate’s
Court. In most assault cases the fines imposed are
either R3000 or R6000 regardless of the injuries suffered by the
victim and
regardless of the accused's ability or inability to pay
such a fine.
6.
It is my understanding that a trial Court, having decided to impose a
fine it is duty bound to consider what the appropriate
amount is. As
a starting point a fine is imposed when the trial Court is of the
considered view that the convicted person should
be kept out of
prison. In practice and in keeping with the deterrent objective of a
sentence the amount has to be commensurate
with the seriousness of
the crime (S v Haufika 1975(2) SA 541 (A) at 548B). The vexing
question in this case is whether the fine
imposed by the trial Court
is appropriate.
7.
The accused ages are recorded in the J15 as 20 years and 13 years.
The first sentence on the judgment on sentence reads as follows:
“This Court will take into consideration that both of you are
still very young and that you are still attending school...".
The trial Court having correctly decided that imprisonment was
inappropriate in this case shut his mind to the consequences of
a
subsequent conviction for assault (S v Ntlele 1993(2) SACR 610 (W)).
It is an accepted practice in our law that a fine should
not be fixed
at an amount beyond the means of the accused. In casu there was no
enquiry into the ability of the accused to pay
the fine with the
assistance of their families or from any other sources. It would be
unrealistic, in my view, to assume that the
accused would be able to
raise the R3000 in the future, should that become necessary. It has
been held that the imposition of a
fine beyond the means of an
accused is tantamount to a refusal to determine an appropriate fine.
8.
There are additional sentencing options the trial court failed to
investigate. These include i.a. community service be it at
a police
station or a trauma unit at a hospital or the very restorative
justice already initiated and settled by the parents of
the victim
and the accused.
9.
Despite evidence having been tendered that the eiders of the accused
had reached an agreement with the victim’s parents
that the
accused (helped probably by their parents or guardians) pay the
victim a ‘fine’ of R600 and further that R250
of that
amount had already been paid the trial Magistrate overlooked this
“sentencing option” entirely. Strangely,
he found that
the sentence he imposed was “...blended with mercy”. This
remark appears to have been made tongue in
cheek for that amount may
be well beyond the means of the accused or their parents or
guardians. The trial Magistrate overlooked
an opportunity to advance
a sentencing option that was well-known in African culture and that
is restorative jurisprudence which
normally takes the form of the
cleansing of the home of the victim of a crime or violation of the
integrity of the home of another
particularly of people living
together by the payment of a fine. As matters stand it might very
well be the case that the elders
who had reached the agreement
mentioned above may have regarded their restorative measures as
having been superseded by the sentence
imposed by the Court.
10.
The sentence of R3000 appears to be arbitrary and excessive. There is
no evidence of any treatment having been given to the
complainant
which would have helped to determine how serious the injury he
sustained was. Consequently it is not possible for this
Court to
consider what an appropriate sentence is without all the facts in the
matter. The only and appropriate measure is to refer
the matter back
to the trial Court for the proper evaluation of an appropriate
sentence.
11.
It is accordingly ordered that the sentence imposed on the accused be
and is hereby set aside. It is ordered that the matter
be and is
hereby remitted to the trial Court for the proper adjudication of the
appropriate sentence along the lines referred to
above.
G.
WEBSTER
JUDGE
IN THE HIGH COURT
I
agree.
R.G.
TOLMAY
JUDGE
IN THE HIGH COURT