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2004
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[2004] ZAFSHC 104
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S v Matiea (1765/2004) [2004] ZAFSHC 104 (11 November 2004)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION
Review No. : 1765/2004
In
a special review of:
THE
STATE
versus
PAKANE
ERNEST MATIEA
_____________________________________________________
CORAM:
WRIGHT
J
et
VAN
DER MERWE J
JUDGMENT:
VAN
DER MERWE J
DELIVERED
ON:
11
NOVEMBER 2004
_____________________________________________________
[1] In this matter the
accused was found guilty of assault in terms of the provisions of
section 112(1)(a)
of the
Criminal Procedure Act, No. 51 of 1977
. He
was thereafter sentenced to 3 months imprisonment suspended for a
period of 3 years on condition that the accused is not convicted
of
assault with the intent to do grievous bodily harm committed during
the period of suspension.
[2] The
magistrate sent the matter to this Court for purposes of special
review on the basis that the aforesaid sentence was not competent.
This view is correct, as in terms of
section 112(1)(a)
of Act 51 of
1977 only a fine of not more than the amount of R1 500,00 or
alternative imprisonment may be imposed. It follows that
the
sentence must be set aside.
[3] I consider it in the
interest of justice not to remit this matter to the magistrate for
purposes of sentencing afresh.
[4] The accused is 43
years of age and a first offender. He is married and the father of
five children who are attending school.
The accused is unemployed.
The assault in question consisted of hitting the complainant with
open hands and took place because
the accused became angry because of
something said by the complainant. In all these circumstances a
sentence of a fine of R300,00
or 30 days imprisonment wholly
suspended for a period of 3 years on condition that the accused is
not convicted of assault committed
during the period of suspension,
appears to me to be a suitable sentence.
[5] Therefore the
conviction is confirmed, but the sentence set aside and substituted
with a sentence of a fine of R300,00 or 30 days
imprisonment, wholly
suspended for a period of 3 years on condition that the accused is
not convicted of assault committed during
the period of suspension.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_____________
G.F WRIGHT, J
/S
Pieterse