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[2009] ZAGPJHC 110
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S v Sejane (C1123/09) [2009] ZAGPJHC 110 (13 October 2009)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
High Court Ref. No. 229/09
Magistrate’s serial No. 13/09
Case No. C1123/09
Date: 13/10/2009
THE STATE
Versus
MPHO
SEJANE
........................................................................................
Accused
REVIEW JUDGMENT
MEYER, J.
[1] This is a review in the ordinary
course. On 13 May 2009, the Magistrates’ Court, Natalspruit
(Alberton) convicted the
accused of the crime of assault with the
intent to do grievous bodily harm. The charge of which the accused
was convicted is that
she on 1 March 2009 unlawfully and
intentionally assaulted her sister, Ms. Matshepo Sejane, by stabbing
her with an empty beer
bottle with the intent of causing her grievous
bodily harm. On 25 August 2009, she was sentenced to three years
imprisonment pursuant
to her conviction. The accused was not legally
represented.
[2] The following facts appear briefly
from the evidence of the accused’s sister, Ms. Matshepo Sejane,
of that of her mother,
Ms. Dekgomo Sejane, and of that of herself. A
verbal argument ensued between the accused and her sister at their
mother’s
house on 1 March 2009. This resulted in a physical
altercation between the two of them. It appears from the totality of
the evidence
that the physical altercation was started by the
accused’s sister, who pushed the accused and hit her with
clenched fists.
The accused also hit her sister with a clenched
fist, but she got hold of an empty beer bottle, which she either
broke or which
broke when she hit her sister with it. The accused
stabbed her sister several times with the bottle on both her lower
legs and
between her left thumb and index finger. Ms. Matshepo
Sejane screamed and called her mother. Upon entering, Ms. Dekgomo
Sejane
was also stabbed by the accused on the lower part of her left
arm. The accused threatened to kill her sister. The evidence of
both the accused’s sister and that of her mother was that the
accused also threatened to kill her sister’s unborn child.
The
accused’s sister was pregnant at the time. Ms. Dekgomo Sejane
called the police. Police officers attended. The accused
was
arrested. Ms. Matshepo Sejane was taken to hospital where she
received medical treatment. She received fourteen stitches
for an
open wound on her left leg and three stitches for one on her left
thumb. The accused was convicted of assault with the
intent to do
grievous bodily harm.
[3] The accused and their younger
sister, Ms. Fedi Tsotetse, testified in mitigation of sentence. The
learned magistrate also required
a pre-sentence report from a
probation officer. Such report was prepared by a social worker, Mr.
Barney Roulash, who is employed
by the Gauteng Provincial Government,
Department Social Development. He also testified before the accused
was sentenced.
[4] The accused is 37 years of age.
She is a first offender. I have mentioned that the accused’s
sister started the physical
altercation between them. In mitigation
of sentence she expressed remorse for what she had done. It should
also be mentioned
that when she cross-examined her sister and her
mother, she requested them to forgive her for having stabbed them.
It further
appears from the cross-examination of Ms. Dekgomo Sejane
that the accused’s perception was that her mother did not like
her.
Her younger sister also testified that they did not receive
equal treatment from their mother. The accused and her sister
clearly
had a very bad relationship.
[5] The accused’s younger sister
testified that the accused ‘is not mentally stable’. She
testified that the
accused abuses drugs and she requested the court
to refer the accused for rehabilitation. The accused’s sister,
Ms. Matshepo
Sejane, also testified during the trial that the accused
acted as she did because she ‘smokes dagga’. Her mother
also
testified that the accused ‘likes’ dagga.
[6] The learned magistrate required a
pre-sentence report from a probation officer as a result of the
evidence of the accused’s
youngest sister. On her use of
dagga, the probation officer, Mr. Roulash, reported as follows:
‘
According to the two sisters of
the accused she has been abusing dagga for the past two years. Both
sisters informed the probation
officer that the behaviour of the
accused is totally unacceptable when she is under the influence of
dagga.’
[7] On her mental state, the probation
officer expressed the opinion in his report ‘that there is
possibly something wrong
with the accused mentally and that she needs
to be assessed by a psychiatrist in order to give the court a
professional opinion.’
The probation officer for this reason
refrained from making any recommendation with regard to sentencing
options and recommended
that the court refer the accused for
psychiatric assessment before sentencing. Since he compiled the
pre-sentence report and before
he testified the probation officer had
another discussion with the accused, which discussion resulted in him
informing the court
that he was ‘really convinced’ or
‘absolutely sure that there is something mentally wrong with
the accused person.’
On 25 August 2009, the learned regional
magistrate nevertheless sentenced the accused to three years’
imprisonment and
declared her unfit to possess a firearm.
[8] The proceedings were only
submitted to me for review on 7 October 2009. I am unaware of the
reason for this extraordinary delay.
I have not requested a
statement from the magistrate due to the urgency of the matter. Adv.
Zeiss van Zyl S.C., on behalf of
the Director of Public Prosecutions,
has furnished me with an urgent oral review opinion for which I
express my gratitude. I agree
with the submissions made by him on
the appropriate and most expeditious procedure that should be
followed in this matter.
[9] In the light of the allegations of
mental defect on the part of the accused, the learned magistrate
should, in terms of ss 77(1)
and 78(2) of the Criminal Procedure Act
51 of 1977 (‘the Act’), have directed that the matter be
enquired into and
be reported on in accordance with the provisions of
s 79 of the Act. Once a report was received, the learned magistrate
should
have determined the matter in accordance with the provisions
of ss 77 and 78 of the Act. He should only have sentenced her if it
was legally permissible once such determination had been made.
[10] I mention in passing that I
nevertheless am not satisfied that the trial court exercised the
discretion bestowed upon it in
imposing sentence properly and
reasonably. See:
S v
Kgosimore
1999 (2) SACR 238
(SCA). It does not appear from the judgment on sentence that all the
relevant factors and circumstances including those referred
to by me
were taken into account in sentencing the accused. I refrain from
making a finding in this regard since the learned magistrate
was not
afforded the opportunity of furnishing a statement as contemplated in
the
Criminal Procedure Act.
COETZEE, J.
[11] I agree with my brother Meyer, J.
[12] In the result the following order
is made:
The sentence imposed upon the accused
is set aside.
The matter is referred back to the
Magistrates’ Court, Natalspruit, for the learned Magistrate,
Mr. Buthelezi, who convicted
and sentenced the accused:
to direct, in terms of ss 77(1) and
78(2) of the Criminal Procedure Act 51 of 1977 (‘the Act’),
that the matter
be enquired into and be reported on as a matter of
urgency in accordance with the provisions of s 79 of the Act;
to determine the matter in
accordance with the provisions of ss 77 and 78 of the Act once the
report envisaged in paragraph
2.1 above is received; and
to sentence the accused with due
regard to the time that she had already spent in custody if it is
legally permissible to sentence
her once the matter has been dealt
with as envisaged in paragraphs 2.1 and 2.2 above.
N.J.
COETZEE
JUDGE
OF THE HIGH COURT
P.A.
MEYER
JUDGE
OF THE HIGH COURT
13
October 2009.