S v Sebose (981/2007) [2007] ZAFSHC 149 (13 December 2007)

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[2007] ZAFSHC 149
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S v Sebose (981/2007) [2007] ZAFSHC 149 (13 December 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No: 981/2007
In the matter between:
THE
STATE
and
LEHLOHONOLO
PHILLIMON SEBOSE
_____________________________________________________
CORAM:
BECKLEY,
J
et
KRUGER J
_____________________________________________________
JUDGMENT
BY:
KRUGER, J
_____________________________________________________
DELIVERED
ON:
13 DECEMBER 2007
_____________________________________________________
[1] The
magistrate at Welkom sent this case on special review under section
304(4) of Act 51 of 1977. After finalising the matter
the magistrate
realised that she had sentenced accused no. 1 only on count 1, not on
count 3, on which he was also convicted. She
also points out that
her sentence annexure “A” and sentence judgment do not
correspond.
[2] There were three
charges of assault with intent to do grievous bodily harm. On count
1 both accused were convicted. Both were
acquitted on count 2.
Count 3 was only put to accused No. 1, and he was convicted on it.
Therefore, accused No. 1 was convicted
on counts 1 and 3, and accused
No. 2 only on count 1.
[3] In the sentence
judgment the magistrate does not specifically refer to counts 1 and
3. She does however refer to both complainants
and their injuries
(p. 77 lines 7 – 12). The sentence is stated as follows in the
sentence judgment:
“
This
Court is furthermore of the view that fine coupled with direct
imprisonment would not be a suitable sentence and as requested
by the
defence will give each of you an opportunity to rehabilitate within
the community. The Court is therefore going to sentence
each of you
as follows: Your are fined with
R2
000,00 (TWO THOUSAND RAND) or 3 (THREE) MONTHS IMPRISONMENT WHICH IS
WHOLLY SUSPENDED FOR A PERIOD OF THREE (3) YEARS
on condition that each of you are not to be convicted of assault or
assault with the intent to do grievous bodily harm committed
during
the period of suspension.”
[4] It
is clear that both accused are being sentenced. It is also clear
that both receive the same sentence. What is not clear,
is in
respect of which count or counts that sentence is imposed. Having
referred to both complainants (in counts 1 and 3) it would
seem that
the sentence was imposed in respect of both. In that case the
sentence of accused No. 2 is too harsh, and should be reduced.
The
assault on the complainant on count 3 was not as serious as that in
count 1. The complainant in count 3 was only assaulted
with open
hands and clenched fists (p. 58, line 2 – 9).
[5] The sentence of
accused No. 1 should remain unchanged, and that of accused No. 2
reduced. The sentence of accused No. 2 should
be reduced to one of
R1 000,00 or 1½ months’ imprisonment, wholly suspended for a
period of three years on condition that the
accused is not convicted
of assault or assault with the intent to do grievous bodily harm
committed during the period of suspension.
[6] The sentences imposed
by the magistrate are set aside and replaced with the following:
Accused
No. 1:
In respect of a
conviction on two counts of assault with intent to do grievous bodily
harm, accused is sentenced to a fine of R2
000,00 or three months’
imprisonment, wholly suspended for three years on condition that the
accused is not convicted of assault
or assault with intent to do
grievous bodily harm committed during the period of suspension.
Accused
No. 2:
In respect of a
conviction of one count of assault with intent to do grievous bodily
harm, accused No. 2 is sentenced to a fine of
R1 000,00 or one and a
half months’ imprisonment, wholly suspended for three years on
condition that the accused is not convicted
of assault or assault
with intent to do grievous bodily harm committed during the period of
suspension.
________________
A.
KRUGER, J
I agree.
________________
A.
P. BECKLEY, J
/em