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[2009] ZAGPPHC 68
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S v Mashele (A175/09) [2009] ZAGPPHC 68 (6 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL
PROVINCIAL DIVISION]
CASE
NO. LR 69/2008/MPM
High
Court reference No.1951
MAGISTRATE
: GIYAN!
In
the matter between:
STATE
And
ENOCH
MASHELE
ACCUSED
REVIEW
JUDGEMENT
MAKGOKA,
AJ
1] The
accused, a 23 year old male, was convicted of assault with intent to
do grievous bodily harm and sentenced to twelve months'
imprisonment
by the magistrate's court. Giyani. The matter came before me on
automatic review.
2] The
facts of the assault were as follows: On 7 June 2008 the accused had
an altercation with the complainant and a fist fight
ensued between
them, in the process of which the accused produced a knife. He
stabbed the complainant on the arm. He was treated
at a local clinic.
Describing his injury, the complainant stated that
"when
you put a finger and it appeared on the other end..."
3] The
prosecutor did not produce the medical form, the so-called J88, to
corroborate the injuries on the complainant.
4] I
am satisfied with the conviction of the accused. However, I was not
happy with the magistrate's attitude to sentence. On page
27 of the
record,
the magistrate,
after
the
prosecutor
proved no previous convictions, said the following to the accused.
"
Any reason why you should not be sent to prison?"
5] The
accused then
placed
the
following
factors
in
mitigation
Of
sentence;
he was employee'
at
the
Department
of
Human
Resources
(sic)
and earned R3 000.00 per month. He had one child, whom he was
maintaining by buying clothes for the child.
6] In
a terse outlay of the sentence, the magistrate said the following:
"
In passing sentence I have taken into account that you are a first
offender and also that the reason for stabbing the complainant
is
farfetched... you acted like a bull in a supermarket, just decided to
bash everything.
And
you were just fortunate that the knife just got his upper arm because
you
could
have killed him. So I have decided that the following sentence will
suffice bearing in mind that you are employed but sometimes
people
who acted (sic) like you are dangerous. So I have decided that 12
months will suffice"
7] On
perusal of the record, I directed a query to the Director of Public
Prosecutions regarding sentence, and the magistrate's
remark referred
to in paragraph 4 above. I
did
so
in
terms
of
the
proviso
to
section 304 (2) of the-
Criminal Procedure Act, 51 of 1977
, as I was
of the view that
the
matter was of sufficient
urgency.
The
accused
is
currently
in
custody serving the sentence.
8] Advocate
Mudau. the State Advocate, with whom Advocate De Beer SC. the Deputy
Director of Public Prosecutions agrees, is of the
view that the
learned magistrate misdirected himself by imposing imprisonment
without the option of a fine. He further recommends
that the sentence
be set aside and replaced with one of a fine of R2000.00 or twelve
months imprisonment.
9]
I agree with the above proposition. In his sentence , the learned
magistrate seemed to have adopted a view that direct imprisonment
was
the only sentencing option available. He was clearly wrong. A court
must, before sentencing, consider all options, including
, but not
limited to , direct imprisonment. In the present case, there is
evidence that the accused is gainfully employed. The
option of a fine
should have been explored. By failing to consider all sentencing
options, the magistrate misdirected himself.
10]
Regard
being had to the totality of factors in this review, I am of the view
that a proper sentence would be the one proposed by
the State
Advocate. In the premises I
make
the
following order:
The
sentence imposed
by
the
magistrate is
set
aside
and
replaced
with the following:
"The
accused is
sentenced
to
R2 000.00 or 12 months'
“
imprisonment,
TM
MAKGOKA
ACTING
JUDGE OF THE HIGH COURT (PRETORIA)
I
Agree
MW
MSIMEKI
JUDGE
OF THE HIGH COURT