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[2013] ZAFSHC 17
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S v Radebe (358/2012) [2013] ZAFSHC 17 (21 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 358/2012
In
the review between:
THE
STATE
versus
THABO
RADEBE
_____________________________________________________
CORAM:
LEKALE, J
et
MHLAMBI, AJ
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
21 FEBRUARY 2013
_____________________________________________________
[1] On 9 December 2011
the accused appeared before the Magistrates’ Court at Tsheseng,
Witsieshoek and was convicted of and
sentenced to a R2 000,00 fine or
5 (five) months imprisonment wholly and conditionally suspended for
five years for assault with
intention to do grievous bodily harm.
[2] The matter,
thereafter, served before Matlapeng AJ on automatic review and he
directed,
inter alia
, the following query to the trial
magistrate:
“
(a) This
case was finalized on 9 December 2011 and the record of the
proceedings reached the Registrar of this Court only on 9 October
2012. Is there any reason for this inordinate delay?
(b) Is the period of suspension
namely 5 years not too onerous taking into account the mitigating
factors the learned magistrate
found to exist? Is a shorter period of
suspension not appropriate?
”
[3] The learned
magistrate has since responded, for which I am grateful, that:
“
a. The
transcribed record took some time to return from the transcribers.
The matter was discussed on several
occasions with the Court Manager and court clerk, (See Court Manager
/ Court Clerk’s response
attached).
b. I am of the view that the period
of suspension is not too onerous.
Evidence suggests that this took
place in a tavern. The court is on a daily basis dealing with assault
/ assault gbh cases emanating
from a drinking spree in a tavern.
Having considered what was stated in S v Balfour (Pg 23 of record),
and that there is no suggestion
that accused will refrain from
attending taverns, he committed a serious offence with a dangerous
weapon and inflicted injuries
on complainant I am of the view that
the period of suspension is suitable in the circumstances so as to
deter accused from committing
other offences of this nature and to
send a clear message that the court takes these offences seriously
and will not be condoned.
If the Honourable Judge is of the
view that the sentence is not in accordance with Justice: it can be
amended / altered in terms
of section 304(2)(c)(ii) of Act 51 of
1977.
”
[4] I am satisfied from
the explanation furnished that good cause exists for the delay
involved and that all necessary steps were
taken to ensure that the
record is dispatched timeously to the Registrar of this Court as
required by law.
[5] The maximum period
for which a sentence may be suspended is five years. (See section
297(1)(b) of the Criminal Procedure Act
(the CPA).
[6] It is correct, as
pointed out by the learned magistrate with reference to case law,
that the aim of a wholly suspended sentence
is individual deterrence.
(See
S v Balfour
2009 (1) SACR 399
(SCA) at par [11].)
[7] In determining an
appropriate sentence a trial court is enjoined to strike an
appropriate or healthy balance between the nature
of the offence, the
personal circumstances of the accused and the interests of the
society.
[8] It follows,
therefore, that the decision as to the duration of the suspension is
advised by the aforesaid triad. (See
S v Van Rensburg
1978 (4) SA 481
(T) at 483H and compare
S v Nabote
1978
(1) SA 648
(O) at 650.)
[9] The determination of
an appropriate sentence and the conditions on which it may be
suspended as well as the period of such suspension,
are all matters
of discretion on the part of the trial court which exercises the same
judicially with reference to the facts of
each case. (See
S v
Nkokoto en Andere
1978 (2) SA 534
(O) at 537A.)
[10]
The accused in the instant matter is 21 years old,
reached Grade 10 at school and is unemployed. He is not married and
has no children.
He was friends with the complainant at the time of
the assault. The complainant sustained a stab wound and received
medical attention
as a result of the assault. The complainant has
forgiven the accused and they are now on good terms. The accused
initially tendered
a plea of guilty to the charge but the plea was
changed after he inadvertently denied unlawfulness.
[11]
It is correct, as the learned magistrate found, that the crime in
question is serious and pervasive. It is, however, apparent
that the
accused has displayed genuine remorse in that he made peace with the
complainant before the trial and did not only attempt
to enter a plea
of guilty at the commencement of the trial. He clearly and fully
appreciates the consequences of his actions. (See
S
v Matyityi
2011 (1) SACR 40
(SCA)
at 46a - d.)
[12]
It is apparent
ex facie
the
response of the learned magistrate that the rationale behind the five
year suspension period is to discourage the accused from
going to
taverns where he is likely to pick up fights. The accused was,
however, not charged for visiting taverns. The suspended
sentence
imposed and the conditions attaching thereto should be connected to
the offence charged. (Compare
S v
Mjware
1990 (1) SACR 388
(N) at
389g.)
[13]
There is clearly no connection between the condition that the accused
shall not be found guilty of assault and assault gbh
and the desire
to keep him away from the taverns. It may be laudable for the
magistrate to discourage young people from visiting
taverns, but the
fact of the matter is that the accused has not been convicted of
trespassing on taverns. In my view the period
of suspension is not
meant to achieve the result which is not connected to the relevant
offence. (Compare
S v Nkokoto
,
supra
, at
536F – G.)
[14]
In my judgment the five year period of suspension is not appropriate
in the circumstances of the instant matter, regard being
had to,
inter alia
,
the accused’s age, the fact that he is a first offender and the
genuine contrition shown by him. The period in question
is, indeed,
onerous and, as such, not in accordance with justice.
[15] I am, further,
persuaded by the circumstances of the present matter that the
negative condition requiring the accused not to
be convicted of
assault and assault gbh during the period of suspension casts the net
too wide for a young man in the position
of the accused and is, as
such, unfair insofar as it exposes him to the risk of breaching the
same even in the event of a mere
slap.
ORDER
[16] In the result the
conviction is confirmed.
[17] The sentence is,
however, set aside and in its place and stead is substituted the
following:
“
The
accused is fined R2 000,00 or 5 (five) months imprisonment which is
suspended in whole for a period of three years on condition
that the
accused is not convicted of assault with intention to cause grievous
bodily harm committed during the period of suspension.
”
[18] The sentence is
antedated to run from 9 December 2011.
_____________
L.J. LEKALE, J
I concur.
________________
J.J. MHLAMBI, AJ
/spieterse