S v Disenyane (703/2007) [2007] ZAFSHC 133 (22 November 2007)

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[2007] ZAFSHC 133
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S v Disenyane (703/2007) [2007] ZAFSHC 133 (22 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review No.: 703/2007
In the review between:
THE STATE
and
LEFU DISENYANE
_____________________________________________________
CORAM:
RAMPAI, J
et
VAN ZYL, J
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2007
_____________________________________________________
[1] The accused was
convicted in the first place for contravening section 36 Act No. 62
of 1955. He was found in possession of stolen
property, to wit 9kg
copper cable valued at R441,00. The offence was committed in Welkom
on the 19
th
April 2007. He was unable to give a satisfactory account of his
possession in order to rebut the suspicion that the copper had been
stolen. This was the verdict in respect of the first charge.
[2] The second charge was
that the accused unlawfully and intentionally assaulted Luanne van
der Walt at Bez Scrap Metal in Welkom
on the 19 April 2007. As in
the first charge he was also found guilty on the 20
th
July 2007 notwithstanding his plea of not guilty.
[3] He
was then sentenced as follows:
3.1 In respect of the
first charge, he was fined R1 000 or 5 months imprisonment.
3.2 In respect of the
second charge the sentence imposed on him reads as follows:
¡°
Fined
R1500,00 (One thousand five hundred rands) or 5 months imprisonment
and
or
further 3 months
imprisonment is suspended for a period of 4 years on condition that
the accused is not convicted on assault
and
or
assault with intent to
do grievous bodily harm committed during the period of suspension.”
[4] Subsequently the
matter came before me on review. I then sent a query to the
magistrate. I queried the wording of the sentence
imposed in respect
of the second charge as set out in 3.2 above and advised the
magistrate to rephrase it. She did so.
[5] In
her memorandum the magistrate stated that she intended the wording of
the sentence to read as follows:
“
Fined R1500,00 or 5 months
imprisonment and a further 3 months imprisonment which 3 months is
wholly suspended for a period of 4 years
on condition that the
accused is not convicted on assault and or assault with intent to do
grievous bodily harm committed during
the period of suspension.”
[6] The original sentence
imposed on the accused on 20
th
July 2007 in respect of the second charge was unclear and confusing.
The confusion lies in the use of the two words “and or”
which was
done twice, instead of one word “or”. The introduction of the
preposition “and” was unnecessary. It only created
unnecessary
uncertainty. The magistrate concedes that the wording was defective
and that it did not correctly reflect what she really
intended.
Therefore the sentence falls to be set aside on review.
[7] The
nullified sentence is substituted with the following:
¡°
The
accused is fined R1500,00 or 5 months imprisonment. In addition to
this sentence, he is sentenced to a further period of 3 months
imprisonment which sentence is wholly suspended for a period of 4
years on condition that he is not again convicted of common assault
or assault with intend to do grievous bodily harm committed during
the period of suspension.”
[8] Apart from the
aforegoing query I am otherwise satisfied that the conviction and the
sentence in respect of each charge were in
accordance with justice.
The aforegoing order must be deemed to have been made on 20
th
July 2007.
______________
M.H. RAMPAI, J
I
concur.
_______________
C.
VAN ZYL, J
/em