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[2012] ZAFSHC 57
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Maja v S (A287/2010) [2012] ZAFSHC 57 (5 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A287/2010
In
the appeal between:-
ITUMELENG
SHABAN MAJA
…..............................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, R
et
DAFFUE, J
_____________________________________________________
HEARD ON:
6
FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
_____________________________________________________
[1]
On 29 March 2010, the appellant Itumeleng Shaban Maja was convicted
in the Magistrate’s Court, Botshabelo on one count
of assault
with the intention to do grievous bodily harm. On the same day, he
was sentenced to 6 years imprisonment in accordance
with the
provisions of section 4(1) of the Dangerous Weapons Act 71 of 1968.
[2]
After having unsuccessfully applied for leave to appeal to the court
a quo
, a petition was filed with the High Court whereupon
leave to appeal was granted against both conviction and sentence on
11 August
2010.
[3]
Nine grounds of appeal are directed at the conviction of appellant,
primarily against the finding by the court
a quo
that
appellant was correctly identified as the perpetrator. The appellant
appeals against the sentence on the basis that a term
of 6 years
imprisonment is shockingly inappropriate and that the court
a quo
overemphasised the gravity of the offence and interest of the
community and neglected to properly take into account appellant’s
youth and the fact that he was a first offender.
[4]
In his Heads of Argument Mr J D Reyneke, who appeared on behalf of
the appellant, referred to the relevant case law pertaining
to
identification and although he indicated that it was his instructions
to request that the conviction be set aside, he eventually
in oral
argument conceded that the conviction was in order and that he could
not make any sensible submissions in an attempt to
persuade us to
uphold the appeal in this regard. His concession is commendable in
the light of the evidence summarised in the next
paragraph.
[5]
It is prudent to briefly refer to the following to indicate why I am
of the view that appellant’s conviction is in order.
5.1
Prior to the attack on complainant, he and the appellant were in an
altercation in the tavern;
5.2
Complainant accused appellant of trying to rob complainant’s
sleeping friend, Mr Pepenene who testified as state witness;
5.3
All tavern guests and appellant, complainant and Mr Pepenene in
particular consumed liquor during their visit to the tavern;
5.4
The aforementioned guests left the tavern together at about 2 o’clock
in the morning when it closed for business;
5.5
Prior to the attack on complainant he and appellant knew each other
and appellant knew that complainant resided in G section;
5.6
Complainant was attacked in front of his house soon after the tavern
closed and the guests left and there was sufficient light
and
opportunity for complainant to identify his attacker;
5.7
Nothing has been taken from complainant’s person and the attack
was clearly not undertaken to rob, but on all probabilities
intended
as revenge or retaliation. The attack might have continued, was it
not for the approach of the state witness and complainant’s
friend, Mr Pepenene.
5.8
An issue was made in the notice of appeal of the lack of certain
information contained in the complainant’s written statement
and his failure to identify the perpetrator, but nothing turns on
this end. No adverse finding can be made in respect of the
complainant’s
credibility. The statement was not properly
proven, not handed in as an exhibit and not read out fully into the
record in order
to comprehensively consider and deal with it in its
context and any alleged differences between the statement and
complainant’s
testimony in court.
[6]
Mr Reyneke argued that the sentence of 6 years imprisonment should be
set aside and replaced by a sentence of 3 years imprisonment.
He
relied on the unreported judgment of
S v THUNZI
, 2010
JDR 0901 (CC), a judgment of the Constitutional Court now reported in
2011(3) BCLR 281 CC, and submitted that the Court found
that no
prescribed minimum sentences were applicable in terms of section 4 of
The Dangerous Weapons Act 71 of 1968. Consequently
he submitted that
the court
a quo
transgressed its jurisdiction of 3 years
imprisonment contained in section 92 of the Magistrates’ Court
Act 32 of 1944. Mr
Strauss, who appeared on behalf of the State,
submitted that section 4 of The Dangerous Weapons Act 71 of 1968 was
declared unconstitutional
and he agreed with appellant’s legal
representative that a sentence of 3 years imprisonment was an
appropriate sentence.
Therefore he argued that the appeal should
succeed and the sentence of 6 years imprisonment be replaced with a
sentence of 3 years
imprisonment.
[7]
It is necessary to make certain remarks in respect of the
THUNZI
judgment
loc cit.
The Constitutional Court did not declare
section 4 of The Dangerous Weapons Act 71 of 1968 unconstitutional as
submitted. The Court
specifically dealt with section 4 of The
Dangerous Weapons Act 71 of 1968 (Transkei) and made the following
finding:
“
1.
It is declared that Government Notice R409 published under Government
Gazette No 4601 on 7 March 1975 is inconsistent with the
Constitution
and hence invalid, and is set aside.
2. This order
does not invalidate any conviction or sentence in terms of The
Dangerous Weapons Act 71 of 1968 (Transkei), unless
either an appeal
from or a review of, the relevant sentence is pending, or the time
for noting an appeal has not yet expired, or
condonation for the late
noting of an appeal or late filing of an application for leave to
appeal is granted by a competent court.”
Further
directions were made by the Court pertaining to written submissions
to be filed by the Speaker of the National Assembly,
the chairperson
of the National Council of Provinces and the Minister for Justice and
Constitutional Development,
inter alia
as to whether or not
the continued operation of The Dangerous Weapons Act 71 of 1968 of
Transkei, Bophuthatswana, Venda and Ciskei
is unconstitutional and
should be struck down. In accordance with the Court’s
directions a further hearing was to be held
on the 11 November 2010
to consider the above, but to the best of my knowledge no judgment
has been pronounced on the issue.
[8]
Although appellant made use of a dangerous weapon and attacked the
complainant in a brutal manner, I am of the view that the
attack was
not so severe that it could be regarded as a murderous attack as
found by the court
a quo
. In saying this, I am acutely aware
of the fact that one or more of the wounds sustained by complainant
might have caused his death
and that complainant was rather
fortunate. There is nothing on record to indicate that the injuries
sustained were life-threatening
and/or that he suffered any serious
consequences as a result of the attack. The appellant is a first
offender and this should have
carried more weight
in casu
.
[9]
Sentence is pre-eminently a matter for the discretion of the trial
court and an appeal court is only entitled to interfere with
a
sentence where there has been a material misdirection by the trial
court or when the sentence imposed is shockingly and startlingly
inappropriate. For the reasons mentioned earlier the trial court did
not achieve a judicious balance between all relevant factors
and the
sentence is also shockingly inappropriate. I am of the view that we
should accept the submissions of both legal representatives
and
consequently I would dismiss the appeal in respect of the conviction,
but uphold it in respect of the sentence. The following
orders should
therefore be made:
1.
The appeal against the conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence of the court
a quo
is set aside and substituted
with a sentence of 3 years imprisonment.
4.
The sentence is anti-dated to 29 March 2010.
_____________
J.P. DAFFUE, J
I concur and it is so
ordered.
________________
C. VAN ZYL, J
On
behalf of appellant: Mnr. J D Reyneke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. M. Strauss
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/eb