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South Africa: Free State High Court, Bloemfontein
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2005
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[2005] ZAFSHC 104
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S v Kapapa (959/2005) [2005] ZAFSHC 104 (15 September 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Review Case No.: 959/2005
In
the case between:
THE STATE
and
BEN MOKUBE KAPAPA
CORAM:
HATTINGH, J
et
VAN DER MERWE, J
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
15 SEPTEMBER 2005
_____________________________________________________
[1] The accused in this
matter was charged with common assault. In the charge sheet it was
alleged that the accused assaulted a
Dr. Riaan Olivier at Group 4
Prison in Bloemfontein by hitting him on the shoulder with a sock
containing a bar of soap.
[2] The accused pleaded
guilty, was duly convicted and thereafter sentenced to a 12 months
imprisonment. The conviction is in order
but the sentence, for the
reasons that follow, in my view clearly not.
[3] During questioning in
terms of Section 112(1)(b) of Act Nr. 51 of 1977, the accused fully
explained the circumstances leading
to the commission of the offence
in question. This was accepted by the prosecutor. The accused said
that he had killed a person
and that that caused him problems. He
said that he could not sleep at night, the deceased person troubled
him at night, as he put
it. He was then taken to the complainant,
apparently a medical doctor. His perception was that the complainant
was unwilling to
assist him. Upon his return to his unit in the
prison, the accused decided to commit suicide. He cut himself and
also attempted
to hang himself, as a result of which he was taken to
the prison hospital.
[4] The following morning
the accused was called to see the complainant in his office. In the
office, the accused, who was obviously
in a seriously troubled
emotional state, was unhappy with the attitude displayed by the
complainant. An oral altercation ensued
as a result of which the
accused was taken from the office of the complainant. While sitting
outside the office of the complainant,
waiting to be taken back to a
section of the prison referred to as Broadway, the complainant passed
him, greeted him and said that
he should
¡°¡¦
.
gaan loop slaap lekker in die Broadway.â
This remark angered the
accused to the extent that he hit the complainant with the sock
containing a bar of soap. He hit the complainant
once and the
complainant was not injured. He said that he hit the complainant
because the complainant was supposed to assist him,
but refused to do
so.
[5] The accused has two
previous convictions of assault and two of murder. He was convicted
of all these offences on 9 May 2000.
On each of the charges of
assault he was cautioned and discharged and on each of the murder
charges he was sentenced to 15 years
imprisonment.
[6] The crime in question
is a minor one, bordering on
de
minimis non curat lex
.
It was committed in circumstances that required that compassion and
mercy be extended to the accused. In my judgment these matters
by
far outweigh the fact that the accused has the previous convictions
referred to above. The sentence of 12 months imprisonment
in this
case is startingly inappropriate and must be replaced with a caution
and discharge.
[7] In the result the
conviction is confirmed but the sentence set aside and replaced with
the following:
The
accused is cautioned and discharged.
________________________
C.H.G.
VAN DER MERWE, J
I
concur.
________________
G.A.
HATTINGH, J
/em