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[2009] ZAGPPHC 71
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S v Macebele (A290/08) [2009] ZAGPPHC 71 (6 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)
6
March 2009
Case
No: A290/08
High
Court Ref No: 217
S
V
ELMON
VONGANI MACEBELE
REVIEW
JUDGEMENT
SERITI
J
1.
This matter came before me on automatic
review pursuant to the provisions of
section 302
of the
Criminal
Procedure Act 51 of 1977
.
2.
The accused was arraigned in the
magistrate's court. Malamulele, on a charge of assault with intent to
do grievous bodily harm.
He pleaded not guilty to the charge. He was
convicted as charged and sentenced to pay a fine of R2400-00 (two
thousand four hundred
rand), alternatively a term of imprisonment of
12 (twelve) months.
3.
No query was si rtt to the magistrate
regarding sentence. The matter was also not forwarded I • the o<
•"•
•• of the
Director
of Public Prosecution for their commentt on sentence. There ■••(:.
an for this was that it was in the interests
of justice that accused
be released with immediate effect as it was clear that i. would be
unjust to keep him in costody >'
■ 31 much longer.
4.
The sonipn^c im y ■ 'do'1 '' Is ie
n.y view harsh tnkmg irro account his ). v 't'tlon oi'swtencvl..'
aclvls r •'. s
court
that he is still a scholar doing grade 10. He is looking after his
sibling as his mother is working at the Reef. When asked
by the court
if he could afford a fine, he replied that he could not.
5.
At the time of the commission of the
offence accused was a relatively young man of 20 (twenty) years.
6.
The question of sentence falls within the
discretion of the trial court. This court will only interfere with
the sentence of the
trial court if the trial court did not exercise
its discretion properly, misdirected itself or if the sentence
induces a sense
of shock.
7.
Accused is a first offender, relatively
young and it also became clear that he could not afford to pay a
fine. The injury that the
complainant sustained was an open
laceration, which he said was just cleaned and dressed with a bandage
at Malamulele hospital.
No medical report was handed in court by the
complainant.
8.
The magistrate referred to complainant's
injury as an 'ugly wound'. He further said.
"/
have
heard correctly when you said you do not have money to pay for a fine
however this court wants to give you the latitude if
somebody it
might he a relative it might he a family member deciding to by out
your freedom, will do so as I am going la impose
a time of
imprisonment coupled with payment of a fine. "
9.
'1 he sentence with an option of a fine was
clearly not an appropriate sentence in the wrounwttBWW. This cowl th<
rcfore is entitled
to interfere with ttte sentence of the trial,
couv..
!'...
I notice tiiat the accused was serUciiceti cr. .'■-<■'■
i October 2002. The
Registrar
of this court received the court record on the 19 February 2009 and
it was brought to my attention on the 20 February
2009. This means
that the accused has already spent 4 (four) months and 2 (two ) weeks
in prison before this matter could come
before me. The delay by the
magistrates in forwarding matters of this nature is totally
unacceptable as it causes prejudice to
an accused person, as it has
done in this case.
11.
If
this matter was forwarded to this court earlier, the accused could
have been released a long time ago.
12.
In
the premises, the court makes the following orders.
1.The
conviction is confirmed.
2.The
sentence imposed by the magistrate is set aside and substituted with
the following;
2.3 30 (thirty) days imprisonment.
2.2. In terms of
section 282
of the
Criminal Procedure Act 51 of 1977
, the sentence is antedated to 1
October 2008.
3. The Registrar is ordered to bring
it to the attention of the Clerk of the Court
that matters of this
nature must be forwarded to the High Court as soon as
possible.
W.L.
SERITI.
JUDGE
OF THE HIGH COURT.
F
M . LEGODI
JUDGE
OF THE HIGH COURT.