About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 63
|
|
S v Notwane (A437/2008) [2009] ZAGPPHC 63 (6 March 2009)
IN
THE
HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
DATE:
06 March
2009
MAGISTRATE:
M. H. MOLOTO BOLEBEDU
High
Court Reference No. 2038
Magistrate
serial No. 39/2008 Review Case No. A437/2008
THE
STATE VS LAWRENCE MOKGWATHI NOTWANE
REVIEW
JUDGMENT
LEDWABA
(J):
[1]
This is a review in terms of
section
304
of
the
Criminal Procedure
Act
51
of
1977.
[2]
The accused was
charged
with
assault
with
intent to
do
grievous bodily harm
(read
with
the provisions of section 51 (2)
of
the
Criminal
Law
Amendment
Act
105
o
f
1997, in
that,
upon
or about
8 October 2008 and at
or
near
Modubung
in
the
district
of Bolobedu, the
accused
did
unlawfully and intentionally assault Nelly Molele by stabbing her
with a knife on the left breast with intent of causing her grievous
bodily harm.
[3]
He was convicted as charged and sentenced to three (3) years
imprisonment.
[4]
The judge that initially perused the file requested the magistrate to
justify the imposition of three (3) years imprisonment
in the matter.
[5]
The magistrate's response was as follows:
"The
accused stabbed an elderly woman with
a
knife
in the breast. According to the Medico-Legal examination (exhibit B),
the complainant sustained a deep incised wound
(3cm
long'
on
the left breast with collection of blood and air in the
lung.
This
no doubt is indicative of infliction of a hard blow. The complainant
bled severely. Her face was also swollen as a
result
of the blow in her breast”
.
She
was hospitalsed for a week. She
could
have
lost
her
life if she was
not
lucky.
This
type of
an
offence
is prevalent in the district of Bolobedu. It appears that people
simply resort to violence after taking intoxicating liquor.
And it is
the duty of our court to impose deterrent sentences in an endeavour
to stamp it out. In the light of the afore-going,
the Honourable
Judge is urged not to interfere with the sentence."
[6]
The evidence of the complainant regarding the assault is not
contradicted. I am satisfied that the conviction is in order.
[7]
I will now comment on the sentence. The file, together with the
magistrate's reasons was sent to the office of the director
of
public Prosecutions comments. Two senior state advocates,
in their valuable comments, submitted that the sentence
should tie
interfered with.
[8]
The assault was indeed severe end the magistrate said the offence ie
prevalent in their area of jurisdiction.
4
[9]
It is trite law that in sentencing all the relevant factors should
properly balance the said factors without overemphasisng
any of the
relevant factors.
[10]
The accused herein was forty-three (43) years old when he commented
the offence. The complainant testified that he was 'heavily
drunk'
and she accepted his apology.
[11]
In the report of the psychiatrist, Doctor Ewerest dated 23
rd
November
2007, who examined the accused on 18
th
September
2007 - 25
th
October 2007, it is also stated that
accused
was severely assaulted by the member of the community after the
offence was committed and he sustained head injuries which
caused him
to suffer from headaches.
[12]
According to the charge sheet accused was arrested on 18
th
October
2006 and his first appearance in court was on 21
st
July
2008. It is not clear as to where was the accused between 18
th
October 2008 and the 21
st
July 2008.
[13]
Furthermore, there is nothing on record showing when he was referred
to a psychiatrist.
[14]
It is not clear in the record of the proceedings as to where was the
accused kept after he was examined because the charge
sheet recorded
that his first appearance in court was on 21
st
July
2008
and he was released on warning until he was convicted on 7
th
October 2008.
[15]
The magistrate, in
my
view,
misdirected himself in not taking into account or explaining what
transpired between the 18
th
October
and 21
st
July 2008. The accused was also punished by the members
of
the
community and sustained head injuries.
[16]
Considering the seriousness of the offence, accused's personal
circumstances, the interests
of
the
community and the aforesaid relevant factors I am of the view that a
sentence
of
three
(3) years direct imprisonment is too harsh
[17]
I Hereby make the following order
(i)
The
conviction is confirmed.
The
sentence of three (3) years imprisonment is set aside and
substituted with a sentence of two (2) years imprisonment one (1)
year of which is suspended for three (3) years on condition that
accused is not convicted of assault with intent to do grievous
bodily harm committed within the period of suspension.
A.
P. LEDWABA
(JUDGE
OF THE HIGH COURT)
I
Agree
C
Botha
JUDE
OF THE HIGH COURT