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2009
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[2009] ZAGPPHC 173
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S v Sibiya (461/09) [2009] ZAGPPHC 173; 2010 (1) SACR 284 (GNP) (11 August 2009)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG PROVINCIAL DIVISION, PRETORIA
High
Court Reference Number: 461/09
DATE:11/08/2009
In
the matter between:
THE
STATE
Versus
LUCKY
SIBIYA
...............................................................................................................
Accused
REVIEW
JUDGMENT
1.
The accused was correctly convicted by the Magistrate's Court for the
district of Nkomazi of contravening section 17(a) read
with
sections
1.
5
and
7
of the
Domestic Violence Act 116 of 1998
.
2.
He was sentenced to twelve months imprisonment of which eight months
were conditionally suspended for a period of three years
3.The
accused had been prohibited by a Protection Order issued on the 24
October 2009 from assaulting, threatening or harassing
the
complainant, his former girlfriend with whom he has a child-
4.
Although the order was never produced in evidence it was common cause
throughout the proceedings between the State and the accused
that
such an order had in fact been issued and served upon the accused.
5.
The magistrate correctly held that it had been proven beyond
reasonable doubt that the accused contravened this order a week
after
it was issued by harassing the complainant, demanding to see his
child and by slapping the complainant twice in the face.
6.
On review, the then acting reviewing Judge enquired from The
presiding magistrate why he had regarded direct imprisonment as
the
only option.
7.
The magistrate replied that the accused had flouted the law quite
deliberately and had invaded the victim's right to privacy
in a
fashion that was so serious that imprisonment was the only option.
8.
The accused informed the court before sentence that he had been
employed as a security guard earning R 1 500,00 per month, out
of
which funds he was supporting his six siblings who are still at
school This employment was lost when he was suspended after
having
been charged It was clear that he would loose this work if he went to
jail.
9.
in the light of the fact that the accused's evidence in this regard
was not challenged it is difficult to fathom what good the
trial
court expected to come from a short term of imprisonment imposed on a
young first offender who was obviously experiencing
difficulties m
controlling his emotions after the relationship with h:s girlfriend"
broke up
10.
The accused will almost certainty struggle to find new employment
after a prison term that was too short for any rehabilitative
programs to be made available to him but long enough to taint him
with the brush of being a jailbird and to expose him to the bad
company of experienced criminals.
11.
Having lost his job he will be unable to support his child and his
siblings and may be forced to seek the company of those whose
acquaintance he made behind bars to find a mode of existence.
12.
Our courts have often emphasized that short terms of imprisonment do
more harm than good, of which the present instance is a
textbook
example. Unfortunately these admonishments appear to be largely
ignored by the turning of a blind eye to the negative
consequences
that the accused's loss of employment in these days of dire economic
straights has for the victim and society alike
as a result of the
injudicious application of a sentencing option that should be
reserved for offenders who are a real threat to
society, and not to
young hotheads who have not yet learnt to act with restraint.
13.
A suspended sentence - or an attempt to impose a sentence based upon
an application of the principles of ubuntu by effecting
a
reconciliation between the victim and the offender (See Uversage v S
not yet reported. Case No A4/20G7 North Gauteng) •
would have
beer. a more effective punishment. It would have served both as a
warning to the offender and it would at the same time
have allowed
him to come to his senses while still being able to fulfill his
financial and socially responsible commitments to
his chile and his
siblings.
14.
Unfortunately, the accused has by now served his time and the fact
that his sentence will be substituted with a more suitable
one will
have no practical effect.
15.The
court is indebted to adv Lakhi-Hatia, Deputy Director of Public
Prosecutions, and State Advocate S R Sibara for their comments.
Their
proposal in regard to an appropriate sentence is accepted.
The
following order is made:
1.
The conviction is confirmed.
2.
The sentence is set aside and substituted with the following:
"Three
months imprisonment wholly suspended for two years on condition that
the accused is not convicted of contravening section
17 of Act 116 of
1998. of assault or assault with the intent to cause grievous bodily
harm, committed during the period of suspension
and for which the
accused is sentenced to direct imprisonment"
Signed
a; Pretoria on this" "day of August 2009.
E
BERTELSMAN
Judge
of the High Court
I
agree
CP
FOURIE
Acting
Judge of the High Court