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[2009] ZAGPPHC 250
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Mojaina v S (A459/09) [2009] ZAGPPHC 250 (25 May 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
DATE: 25/05/2009
CASE:A459/09
High Court Ref no: 187
Magistrate's Serial No: 11/2008
(Bloemhof)
Review case no: A478/2008
In
the matter between:
THE
STATE
and
DANIEL
MOJAINA
REVIEW JUDGMENT
RABIE
J:
1.
The accused was convicted on 17 December 2008 on a charge of assault
with the intent to do grievous bodily harm He was sentenced
to a fine
of R1000.00- or 10 months imprisonment, wholly suspended for five
years or, condition of that he is not convicted of
an offence of
assault with intent to cause grievous bodily harm or assault common
or indecent assault committed during the period
of suspension The
accused was furthermore declared unfit to possess a firearm.
2.
When the matter came on review before me, I made certain enquiries
relating to the question whether the accused was properly
convicted
or whether he should have been convicted of common assault. I
furthermore queried the issue of sentence and the declaration
in
terms of section 103 of Act 50 of 2000.
3.
The magistrate responded to the query and I am indebted to him.
4.
The facts of the matter are rather scant. The charge against the
accused was that on the 30 November 2008 'n the district of
Bloemhof.
be assaulted the complainant by slapping her with an open hand with
the intent of causing her grievous bodily harm. From
the evidence of
the complainant it appears that the assault was unprovoked but not
much more of any note or relevance can be gleaned
from her evidence.
The witness who testified also did not contribute in any meaningful
manner except to confirm the assault by
way of a slap.
5.
The accused himself, when he testified, merely admitted that he
slapped the complainant and the matter was left at that
6.
It was consequently not clear why the accused had been convicted of
the more serious form of assault namely assault with the
intent to do
grievous bodily narm. There was no eviaence as to where on the body
of the complainant the accused slapped her There
was no evidence as
to the degree of force applied and tne manner in which it was applied
There was also nc evidence as to the injury,
if any the complainant
sustained as a result of ;he assault. There was mention of ar. hjurv
but that clearly did not relate to
the assault by the accused.
7.
In his response to this court’s query the magistrate conceded
that the conduct of the accused did not constitute an intent
to cause
grievous bodily harm but merely that of common assault
8.
Regarding sentence this court asked the question whether a fine of
R1000 00 is commensurate to a sentence of 10 months imprisonment
and
whether there is not an imbalance between the two sentences.
Furthermore whether the sentence was not too harsh having regard
to
the nature of the assault, the fact that there were no injuries, the
fact that the accused was a first offender, the fact that
he was 16
years of age. the fact that he earned a meager wage, and having
regard to the other circumstances of the case.
9.
The question was also asked as to the ratio for the condition
relating to community service which was imposed for the suspension
of
the sentence and more particularly how service at the Bloemhof
Magistrate's Court could be regarded as service for the benefit
of
the community It was also asked what the accused would have done
under the supervision of Mrs Burton.
10.
In his response the magistrate deemed the fine commensurate with the
prison term "especially as it is suspended’'.
He conceded,
however, that the sentence may nave been too harsh in the
circumstances. The magistrate further explained the issue
of
community service at the Bloemhof Magistrates Court and the role of
Mrs Burton.
11.
In my view the magistrate erred in imposing the sentence which he
did. Having regard to the nature of the offence the interest
of
society and the interest of the accused as well as the victim, a fine
of R1000.00 is shockingly inappropriate. Furthermore,
the sentence of
10 months imprisonment which the accused will have to serve if he is
unable to raise the fine, is not only totally
disproportionate to the
fine but in itself creates a sense of shock
12.
The fact that the sentence was wholly suspended does not cure the
defect that the sentence was shockingly harsh. It is simply
wrong for
a court to impose a harsher sentence than is called for in the
circumstances of the particular case merely because the
whole of the
sentence is to be suspended.
13.
Regarding the declaration in terms of section 103 of Ac! 60 of 2000
the magistrate respondent to this court's query regarding
the
considerations for declaring the accused unfit to possess a firearm
in future by saying that he regarded the offence as inherently
violent in nature and that however minimal such an order should be
made.
14.
In my view there is no justification for the declaration made by the
magistrate The accuses is still a relatively young person
and a first
offender. Nothing is known as to how it came about that he slapped
the complainant. It was furthermore only one slap
on an unknown part
of the body which could not have been particularly serious In these
circumstances I am of the view that the
declaration in terms of
section 103 which constitutes a rather drastic inroad on a person s
rights, was not justified.
15.
In the result I make the following order:
1.
The conviction and sentence and declaration in terms of section 103
of Act 16 of 2000 are set aside and replaced by the following
“
The
accused is convicted of common assault and sentenced to a fine of
R100.00 or 14 days imprisonment.
2.
If the defendant had paid the fine originally imposed or any part
thereof, the clerk of the court a quo is ordered to reimburse
the
defendant accordingly.
C.P.RABIE
JUDGE
OF THE HIGH COURT
I
agree
J.
MURPHY
JUDGE
OF THE HFGH COURT