About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2009
>>
[2009] ZAKZPHC 81
|
|
Ndlovu v S (AR202/09) [2009] ZAKZPHC 81 (10 September 2009)
IN
THE KWA-ZULU NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
AR202/09
KHONZEKILE
NDLOVU
versus
THE
STATE
Judgment
Delivered
on 2009
Steyn J
[1] The appellant Ms
Ndlovu, was arraigned before the Magistrates’ Court Camperdown
on two counts of assault with the intent
to do grievous bodily harm.
She was convicted on these counts on the 12
th
May 2008,
and sentenced to two (2) years imprisonment.
[2] The appellant appeals
against the sentence imposed. On behalf of the appellant it has been
argued that the sentence over emphasised
the seriousness of the
offences and that the Court
a quo
misdirected itself when it
decided that direct imprisonment is the only appropriate sentence
under the given circumstances. Ms
Jacobs, acting on behalf of the
Respondent conceded that
ex facie
the record there appears to
have been a misdirection.
[3] I shall now turn to
the sentencing judgment and the reasons that informed the mind of the
presiding officer when he sentenced
the appellant:
“
Now I notice that the
correctional officer recommended correctional supervision. I’ll
tell you, I will not consider correctional
supervision because
that
sentence is a mockery as far as I’m concerned because they are
really making a mockery of that type of sentence.
They don’t comply with it. That sentence, people can do
whatever they please. They continue drinking. Correctional officers
never even go there so – just the other day in parliament, they
said that of the 68 000 people or the 64 000 in South African
who has
correctional supervision, the correctional officers does not even
know what happened . . . .”
1
[4] What is seriously
disturbing in this matter, is that the presiding officer decided to
request a report in terms of
section 276(A)(1)(a)
of the
Criminal
Procedure Act, 51 of 1977
, whilst he decided that he will not
consider correctional supervision as a sentencing option. The views
expressed by the learned
Magistrate show that he had prejudged the
case and that he had certainly not applied his mind to what would be
a suitable sentence.
I am satisfied that he misdirected himself when
he excluded correctional supervision as a possible sentencing option.
[5] Nothing in the
sentencing judgment shows that the Court had truly considered all
sentencing options, including correctional
supervision. The
sentencing judgment demonstrates how the Court closed its mind to the
option of correctional supervision. It
is evident that the
legislature by providing for correctional supervision has
distinguished between two types of offenders: those
deserving of
direct imprisonment and those deserving of punishment but who need
not be removed from society.
2
[6] In light of the
aforementioned misdirection of the Court
a
quo
,
this Court will have to determine afresh on the facts of this case,
paying due consideration to the existing personal circumstances
of
the appellant, an appropriate sentence. In doing so I shall be
mindful of all relevant factors, including the fact that assault
with
the intent to do grievous bodily harm, is a serious offence,
furthermore that each case should be decided upon its own facts
and
circumstances, as is so eloquently stated by Van den Heever JA in
S
v Sinden
:
3
“
. . . . it is an idle
exercise to match the colours of the case at hand and the colours of
other cases with the object of arriving
at an appropriate sentence.
Each case should be dealt with on its own facts, connected with the
crime and the criminal.”
4
[7] The appellant
in
casu
at the time of sentencing was 19 years old, had no previous
convictions and a scholar. Further to this she has a fixed
monitorable
address and on all scores qualifies as a suitable
candidate for correctional supervision. Correctional supervision is
not a lenient
sentencing option. In my view it sufficiently
emphasises
the seriousness of the offences and at the same
time serves the community interest. I am not convinced that the
appellant should
pay the price of an inefficient correctional system.
The comment of the learned Magistrate are not new, the Department of
Correctional
Services has been severely
criticised
in the past, it is however not the duty of presiding officers to
implement sentences, it remains their duty to impose appropriate
sentences.
[8] The conviction is
hereby confirmed, the appeal on sentence however succeeds.
[9] In the result I make
the following order:
The sentence of 2 (two)
years’ imprisonment is hereby set aside and replaced with the
following:
“
In terms of
s 276(1)(h)
of
the
Criminal Procedure Act, 51 of 1977
the appellant is sentenced to
18 (eighteen) months correctional supervision.
This sentence shall comprise of
the following programmes:
Appellant is placed under:
House arrest at the place and
during the times
determined by the Commissioner of
Correctional Services for the full duration of correctional
supervision;
(b) That the appellant attend
programmes for the improvement of the following problem areas:
Orientation programme;
Life-skill programme;
Aggressive offenders programme.
(c) That the appellant abstains
from the use of alcohol and drugs.
.
The appellant may not leave the
magisterial district in which she resides without the permission of
the correctional supervisions
official.
The appellant shall:
Report to the Correctional
Supervision Officer
at the Magistrates’ Court,
Camperdown on 30
September 2009 at 09h00.
(ii) Comply with any reasonable
instruction or instructions given by the Commissioner of Correctional
Services regarding the administration
of an compliance with this
sentence.
Notify the Commissioner of
Correctional Services forthwith in writing of any change in her
residential address.”
_____________
Steyn J
Mnguni J: I concur
_____________
Mnguni J
Date of Hearing: 14 July 2009
Date
of Judgment: 10 September 2009
Counsel
for Appellant: Adv Z Dyasi
Instructed
by: Pietermaritzburg Justice Centre
Counsel
for Respondent: Adv T S Jacobs
Instructed by: Director of Public
Prosecutions, Durban
1
See transcribed record, page 37.
2
See
S v Bergh
2006 (2) SACR 225
(N) at 235e and the
discussion of
correctional
supervision by the learned authors, DuToit et al ‘Commentary
on the Criminal Procedure Act’ Juta (Service
40, 2008) at 28
– 10 E.
3
1995 (2) SACR 704
A.
4
Op cit
at 708
A-B.