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2007
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[2007] ZAFSHC 18
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S v Malangabe (1256/2006) [2007] ZAFSHC 18 (22 February 2007)
IN THE HIGH COURT OF
SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review no. : 1256/2006
In
the review of:
THE
STATE
versus
KULINGILE
GOODMAN MALANGABE
_____________________________________________________
CORAM:
WRIGHT, J
et
KRUGER, J
_____________________________________________________
JUDGMENT:
WRIGHT, J
_____________________________________________________
DELIVERED ON
8
FEBRUARY 2007
_____________________________________________________
[1] The accused, a 26
year old man, was convicted of attempted robbery and sentenced to 30
(thirty) months imprisonment.
[2] The crux of the
matter is summarised in the following paragraph of the court
a
quoâs
judgment with regard to the complainantâs testimony on
the merits:
â
She
testified that on 24 June 2006 an incident took place in St Andrews
Street here in Bloemfontein. She was moving from the downtown
up in
St Andrews Street. She was approached by a certain gentleman whom
she later identified as the accused before this Court, Mr
Malangabe
who wanted his phone. She initially thought that the accused was
making a joke and then she ignored the accused and then
immediately
thereafter the accused grabbed her. As she was grabbed, the accused
pushed her towards the wall and then she started
screaming for help.
The accused continued to grab her and then she started to strangle
the accused. A police officer nearby came.
A police officer
stopped his motor vehicle at the robot and then he apparently saw
everything as it transpired. In the process
of grabbing the accused
made mention that he will take out a knife and then she immediately
thought that the accused may take out
a knife and then injure her
with the said knife. The cell phone was in her property, but the
accused never got hold of the said
cell phone. It was a Nokia 1100
and the value thereof as of today is about R250.00â
[3] With regard to the
sentence of 30 (thirty) months imprisonment reasons were requested.
In his reasons for sentence the magistrate
referred to the
seriousness of the crime and to the trauma and shock of the victim.
This is of course correct but there are also
various mitigating
factors especially the following:
3.1 The accused is a
first offender;
3.2 The accused looks
after a 5 months old child whose father passed away;
3.3 The accused pleaded
guilty but a plea of not guilty was noted;
3.4 The
accused did not attempt to cross examine the complainant and accepted
her version;
3.5 The complainant
suffered no injuries;
3.6 The prosecutor
suggested a wholly suspended sentence. The court realises that the
Court
a quo
is not bound by any proposals by the prosecutor
but the fact that he considered a suspended sentence appropriate is
worth mentioning;
3.7 It
also can be mentioned that the accused was staying in a two roomed
house at the time in question, one portion of which was
being leased.
The income from this was the accusedâs source of income;
3.8 It must still be
borne in mind that we are not dealing with robbery here but with
attempted
robbery;
3.9 The accused was in
custody from the 24
th
of June 2006 and only sentenced on
the 18
th
of September 2006; He was therefore in custody
for a period of approximately 3 months.
[4] In view of all the
circumstances mentioned above and those which appear on the record I
am of the opinion that the sentence imposed
was inappropriate to such
an extent that it should be interfered with. Therefore the following
order is made.
[5] The
conviction is confirmed but the sentence is set aside and substituted
with the following sentence:
Two (2) years
imprisonment of which nine (9) months are suspended for a period of
four (4) years on condition that accused is not
found guilty of
robbery or attempted robbery committed during the period of
suspension. The sentence must be deemed to have been
imposed on 18th
September 2006.
______________
G.F. WRIGHT, J
I concur.
_____________
A.
KRUGER, J
/ec