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[2013] ZAFSHC 74
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S v Huhu (96/2012) [2013] ZAFSHC 74 (16 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 96/2012
In
the review between:-
THE
STATE
versus
SETA
MTHUTHUZELI HUHU
_____________________________________________________
CORAM:
JORDAAN, J
et
FISCHER, AJ
_____________________________________________________
JUDGMENT BY:
FISCHER, AJ
_____________________________________________________
DELIVERED ON:
16 MAY 2013
_____________________________________________________
[1] The accused herein,
one Seta Mthuthuzeli Huhu, was charged and subsequently convicted in
the Magistrates’ Court for the
district of Bloemfontein on 12
February 2013 of the offences of assault with intent to do grievous
bodily harm as well as malicious
injury to property.
[2] For purposes of
sentencing both charges were taken together and the following
sentence imposed:
“
Two (2)
years imprisonment wholly suspended for five (5) years on the
following conditions:
That the accused is not convicted of
assault with intent to do grievous bodily harm or malicious injury
to property committed
during the period of suspension.
That the accused compensate the
complainant in terms of
section 300
of the
Criminal Procedure Act 51
of 1977
in the amount of R1300 (One Thousand Three Hundred Rand).
Such amount is payable in monthly instalments of R200 (two hundred)
and one instalment of R100 (one hundred rand) at Clerk of The Court,
Magistrates Court Bloemfontein. The first instalment is payable
on
or before 7 March 2013 with the remaining instalments on or before
the 7
th
day of each succeeding month until such amount is
paid in full.
In terms of
section 103(1)
of Act 60
of 2000, accused is deemed unfit ot possess a firearm.”
[3] This matter has come
before us as a special review in terms of
section 304(4)
of the
Criminal Procedure Act, No 51 of 1977
, as the acting regional court
magistrate who presided in the matter, brought our attention to the
need to rectify the sentence
imposed especially insofar as it had
regard to
section 300
of the
Criminal Procedure Act 51 of 1977
, as it
was at all material times the intention of the presiding acting
regional magistrate to grant a compensation order as part
of the
conditions of the suspended sentence as contemplated in terms of 297
of the
Criminal Procedure Act 51 of 1977
and not
section 300.
[4] The important
distinction to be drawn between
sections 297
and
300
of the
aforementioned Act was succinctly dealt with by Claassen J in
S
v Khoza
2011 (1) SACR 482
(GSJ) at [8] where he highlighted
in what manner a court can secure compensation to a complainant who,
on account of the conduct
of the accused, had suffered loss or damage
to property. At paras [9] and [10] the following observations were
made:
“
An order in
terms of section 300 of the Act would only be appropriate where the
accused has sufficient property or executable assets
to compensate
the complainant in full, or to a large extent. Where an accused is
unable to compensate the complainant in full,
an order in terms of
this section should not be made. If an accused is employed and able
to repay in instalments, it would be more
appropriate and practical
to impose a sentence suspended on condition of periodical payments…
Compensation as a condition
of a suspended sentence is too often not
considered. A condition of suspension is more flexible, as it can be
judicially adapted
in the case of failure to pay,
without
the complainant having to incur the costs and bother of execution.
Therefore
courts should rather make use of section 297 opportunities to impose
compensation as a suspension condition of the sentence.”
[5] The court
a quo
,
on a reading of the record, quite clearly had in mind to grant a
compensation order, as envisaged in terms of section 297 of
aforementioned Act and not section 300, as it subsequently did. What
was furthermore quite clear is that the accused was employed
and able
to repay the compensation order in instalments and that, having
regard to the particular circumstances of the case, such
an order
would have been more appropriate and practical than an order in terms
of section 300. The accused was never able to compensate
the
complainant in full as he did not have sufficient or executable
assets to achieve such an objective.
[6] I am satisfied with
the conviction and accordingly intend amending the sentence so as to
incorporate the correct reference to
the appropriate section of the
Criminal Procedure Act 51 of 1977
.
[7] The following order
is accordingly made:
1. The sentence imposed
is altered to read as follows with specific reference to condition
(ii) which is now to read as follows:
“
(ii)
That the accused compensate the complainant in terms of
section
297(1)(a)(i)(aa)
of the
Criminal Procedure Act 51 of 1977
in the
amount of R1 300,00 (one thousand three hundred rand). Such
amount is payable in monthly instalments of R200,00 (two
hundred
rand) and one instalment of R100,00 (one hundred rand) at the Clerk
of the Court, Magistrates Court, Bloemfontein. The
first instalment
is payable on or before 7 March 2013 with the remaining instalments
on or before the 7
th
day
of each succeeding month until such amount is paid in full.
”
_______________
P.U. FISCHER, AJ
I concur.
_______________
A.F. JORDAAN, J
/spieterse