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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 300
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S v Mthombeni (A391/08) [2009] ZAGPPHC 300 (2 September 2009)
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personal/private details of parties or witnesses have been
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/
EVDM
NORTH
GAUTENG HIGH COURT (PRETORIA)
DATE:
2 SEPTEMBER 2009
NOT
REPORTABLE
SUPREME
COURT REF: 328
MAGISTRATE'S
SERIAL NO: 03/09
MAGISTRATE
S CASE NO: A391/08
THE
STATE
RISENGA
ELIAS MTHOMBENI
REVIEW
JUDGMENT
POTTERILL
(AJ):
§
1 The accused was correctly found guilty of assault with intent to do
grievous bodily harm He was sentenced to three years
imprisonment.
§
2 The complainant and accused were engaged in an argument and the
accused attacked the complainant with a spade Both parties
were
drinking prior to the assault.
§
3 The injuries sustained are on the left forearm and elbow and nearly
led to permanent paralysis
§
4 The accused is however a […..] man with a clean record.
§
5 I queried the sentence with the Magistrate as being too harsh and
also requested the view from the Deputy Director of Public
Prosecutions. The Magistrate stands by his sentence, but the Deputy
Director of Public Prosecutions submits that the sentence is
too
severe and suggests a wholly suspended sentence
§
6 The offence of assaulting a person with a spade causing serious
injuries may attract imprisonment sentence in appropriate
cases
Society requires Courts
to impose
deterrent sentences for drunken brawls leading to altercations and
assault to which they are exposed much too often A
first offender at
age 53 however need not be ‘removed from society' for a period
of three years on the facts of this case
§7
I find that the Magistrate overemphasized the assault and negated the
personal circumstances of the accused The sentence
is
disproportionate to the accused and the needs of society
§8
I accordingly make the following order
§8.1
The conviction is confirmed.
§8.2
The sentence is set aside and replaced with the following
The
accused is sentenced to three (3) years imprisonment suspended for
five(5) years on condition that in the time of suspension
he not be
found guilty of assault with the intent to do grievous bodily harm
and a direct imprisonment sentence is imposed
§8.3
The registrar of the High Court inform the necessary authorities by
way of telegraph to ensure the immediate release of
the accused.
S.
POTTERILL
ACTING
JUDGE OF THE HIGH COURT
I
Agree;
A.P
LEDWABA
JUDGE
OF THE HIGH COURT