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[2012] ZAFSHC 20
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S v Ranoha (363/2011) [2012] ZAFSHC 20 (23 February 2012)
FREE STATE HIGH COURT.
BLOEMFONTEIN REPUBLIC OF SOUTH AFRICA
Review No. :
363/2011
in the review between:
THE
STATE
versus
LEBOHANG
RANOHA
CORAM:
MOCUMIE,
J
et
NAIDOO,
AJ
JUDGMENT
BY:
NAIDOO,
AJ
DELIVERED
ON:
23
February 2012
REVIEW JUDGMENT
[1] This is a review which came
before this court in terms of section 302(1) of the Criminal
Procedure Act 51 of 1977 ("the
CPA"). In this matter the
accused was, on 3 August 2011, convicted of two counts of assault and
one count of assault with
intent to do grievous bodily harm (Assault
GBH). On both counts of assault, which were taken as one for the
purposes of sentence,
the accused was sentenced to R500, 00 or 100
days imprisonment. On count 3, the charge of assault with intent to
do grievous bodily
harm, the accused was sentenced to 30 months'
imprisonment in terms of
section 276(1
)(b) of the CPA.
[2] The magistrate was requested
to furnish reasons for sentence and to comment on why he found that
correctional supervision was
not a suitable sentencing option. His
response, in summary, is that:
(i)
it was clear
that the accused was the aggressor on the day in question;
(ii)
the level of
violence that he used on the complainant in count 3 was not
insignificant;
(iii)
the nature,
seriousness and prevalence of violence in that district militates
against another suspended sentence or a sentence of
correctional
supervision.
[3] The magistrate concluded by
remarking that although it is difficult to sentence a first offender
to direct imprisonment, the
circumstances (of this case) did not
allow him to impose any other sentence.
[4] Sentencing
requires a fine balancing act where the court must consider the well
known triad expounded in
S
Zinn 1969(2) SA 537 (A) at 540 G,
namely
the seriousness of the offence, the interests of society as well as
the circumstances of the accused. The offence of assault
with intent
to do grievous bodily harm is indeed serious and in the present case,
a great deal of force must have been used to
cause the complainant's
arm to fracture.
[5] It is well-estabiished in our
law that, depending on the circumstances of each case, one or more of
the factors I have mentioned
may require more emphasis than the
others. It is also required of a court to guard against
overemphasising one factor at the
expense of the others, as this
could well lead to an unjust sentence.
[6] The magistrate, in my view,
over-emphasised the interests of society and the seriousness of the
offence and did not give sufficient
weight to the personal
circumstances of the accused and to the circumstances under which the
offences in this case were committed.
The accused, who is not
permanently employed, is obliged to take care of his daughter, while
the mother of the child, who is a
police officer in receipt of a
regular salary, does not contribute to the upkeep of the child. It
would appear that the accused's
sole source of income was the casual
work that he undertook Against this background, the interactions he
had with the mother of
the child and her brothers on the day in
question turned ugiy and violent.
[7] The
magistrate correctly pointed out that this level of violence cannot
be tolerated and that the courts need to impose the
kind of sentences
that reflect the unacceptability of this type of conduct. However, to
my mind, the interests of the minor child
were not taken into
consideration when sentencing the accused to imprisonment for such a
long period, nor the fact that he is a
first offender who had made a
genuine effort to care for his child with meagre resources. In the
matter of
M
v S (Centre for Child Law as
Amicus
Curiae)
2007
(12) BCLR 1312
(CC),
the
Constitutional Court had to consider whether a fresh approach to
sentencing was required where the person being sentenced is
the
primary caregiver of a minor child. In this case, the Constitutional
Court set out guidelines to be adopted by sentencing courts
where a
custodial sentence of a primary caregiver is being considered or is
in issue. These guidelines were summarised in
S
v S (Centre for Child Law as
Amicus
Curiae)
2011(7)
BCLR
740 (CC)
as
follows:
"(a) A
sentencing court should find out whether a convicted person is a
primary caregiver whenever there are indications that
this might be
so.
(b) ...The court
should also ascertain the effect on the children of a custodial
sentence if such sentence is being considered.
(c) If on the
Z/nn-triad approach the appropriate sentence is clearly custodial and
the convicted person is a primary caregiver,
the court must apply its
mind to whether it is necessary to take steps o ensure that the
children will be adequately cared for
while the caregiver is
incarcerated.
(d) If the
appropriate sentence is clearly non-custodial, the court must
determine the appropriate sentence, bearing in mind the
interests of
the children.
(e)
Finally, if there is a range of appropriate sentences on the
Zinn
approach,
then the court must use the paramountcy principle concerning the
interests of the child as an important guide in deciding
which
sentence to impose."
[8] In
S
v S
referred
to above, the applicant, a mother of two minor children, was
sentenced to a custodial sentence.
Khampepe
J
delivered
the minority judgment in terms of which the applicant was placed
under correctional supervision in terms section 276(1
)(h) of the
Criminal Procedure Act 51 of 1977
. In terms of the majority judgment,
delivered by
Cameron
J,
the
appeal to the Constitutional Court was dismissed, and part of the
Court's order was that
the
"National
Commissioner for Correctionai Services is directed to ensure
that a social worker
in the empioy of the Department of Correctional Services visits the
children of the applicant. Mrs S, at least
once every month during
her incarceration, and submits reports to the office of the National
Commissioner as to whether the children
of the applicant are in need
of care and protection as envisaged in
section 150
of the
Children's
Act 38 of 2005
and, if so, to take the steps required by that
provision."
[9] In the present matter, my
prima facie view is that the accused is not someone who needs to be
removed from society at this stage,
but someone who can benefit from
correctional supervision and the programmes that are offered under
the auspices of such a sentence,
for example, the anger management
programme. In this way the accused's deviant conduct would be
addressed, the requirement for
punishment would be fulfilled and the
minor child would still have the benefit of the one parent who
appears to care for her well-being.
This, however, needs to be
properly investigated and canvassed. This investigation must be
undertaken urgently as the accused was
sentenced on 3 August 2011 and
has been in custody for over six months.
[10] in the
circumstances. I make the following order:
The matter is remitted to the
magistrate to request a presentence report and consider
sentence, including the imposition of
correctional supervision,
afresh.
S. NAIDOO, AJ
I agree.
BC MOCUMIE, J