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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

HIGH COURT REF NO. 213852

MAGISTRATE SERIAL NO.40/07

CASE NO. B145/2007

In the matter between:

THE STATE

vs

VUVU WILLARD AND ANOTHER

REVIEW JUDGEMENT

KHUZWAYO AJ

[1] The accused appeared before a magistrate court at Tabankulu facing three counts. According to Annexure “A” Count 1 is Assault with intent to do grievous bodily harm in that on 7 July 2007 he stabbed Makabongwe Qanga with a knife. The provisions of Section 4 of the Dangerous Weapons Act were invoked. Count 11 relates to the stabbing of Lusanda Nkalweni using a knife, Count 111 is robbery in that during the same incident the accused unlawfully and intentionally assaulted Lusanda Nkalweni and with force took a cellphone and a pair of shoes from his lawful possession.

[2] At the end of the trial proceedings both accused were found guilty and sentenced as follows:

“Count 1 and Count 11 to undergo three years imprisonment each. Two counts will be treated as one for purposes of sentence. Count 1 and Count 11 will run concurrently with sentence in Count 111. Sentence in Count 111:. (sic)” This is the sentence which the magistrate passed on 22 October 2007. When the Reviewing Judge Luthuli AJ considered this matter, he on 22 February 2008 sent the following query to the trial magistrate:

“ 1) The form J4 does not correctly reflect the offences of which the accused were convicted and the sentence. Form J4 must be corrected.

2. It would appear that Accused 2 did not take part in the assault on the complainant in count 1. The magistrate is requested to furnish reasons for the conviction of accused 2 on count 1.

2. In respect of counts 2 and 3 it appears as if the allegations and the evidence relates to one and the same act or transaction, to wit the stabbing of the complainant, Lusanda Ndalweni and the taking away with force of a cellphone and a pair of shoes. Did the conviction of the accused on both counts of assault and of robbery in respect of counts 2 and 3 not amount to duplication of convictions?

2. Was it proper for the magistrate to sentence accused 2 an 18 year old youth, with out obtaining a pre-sentence report from a probation officer.”

[3] On 29 April 2008 Ms Nkume, the trial magistrate furnished her response to the query as it appears she was now in Zwelitsha. The same response seems to have been received at Tabankulu magistrates offices on 20 May 2008. There was some considerable delay to have the matter finalized as comments were saught from the trial magistrate in February 2008 and only respond to in May 2008.

[4] The query on the conviction of accused No. 2 on the assault in Count 1 has not been fully justified by the magistrate. She says she did not convict accused No. 2 on Count 1, but only for Count 11 and then sentenced him as she did sentence accused No. 2 because of common purpose. If that is the case, she confirms that accused No. 2 was not found guilty of Count 1, therefore her judgment should have said so. However, the record reads that “The Court has no alternative but to find accused guilty of two counts of assault G.B.H. and robbery”. Therefore, the magistrate according to her comments she arred in finding accused No. 2 guilty for Count 1.

[5] Other than the above misdirection, the accused were properly found guilty in respect of Count 11 and Count 111 respectively.

[6] Turning to the sentence passed, review judge’s query relating to passing of sentence to accused No. 2 a 18 year old youth without obtaining a pre-sentence report from a probation officer was not satisfactorily answered. The record as well as the magistrate’s explanation lacks a material detail. It further demonstrates, with respect, a poor understanding of the need for a pre-sentence report. The magistrate only appreciated that the accused had been in custody and thus “prejudiced” and failed to then appreciate that her sentencing of the accused is a further prejudice to him and amounted to a miscarriage of justice.

[7] In addition to the “triad” enunciated in S v Zinn 1969(2) SA 537 (A) and the main purposes of punishment, the Constitution and international agreements have to be taken into account in sentencing juvenile offenders.

[8] According to Section 290 of the Criminal Procedure Act 51 of 1977 it makes provision which the magistrate should have followed. The Section has various options available and the magistrate ignored that. In S v B 2006(1) SACR 311 (SCA) Ponnan AJA said that having regard to s 28 (1)(g) and (2) of the Constitution as well as the provisions of various international instruments, the overriding message … is that child offenders should not be deprived of their liberty except as a measure of last resort and, where incarceration must occur, the sentence must be individualised with the emphasis on preparing the child offender … for his return to society, (at [19]). And imprisonment must be restricted to the shortest possible period of time (at [20]).

[9] The sentence passed by the magistrate is similar for both accused though accused No. 2 could not be found guilty of Count 1. If the sentence is out of proportion to the nature of the offence it does not fit the crime and cannot on that account be a just sentence (S v Beja 2003(1) SACR 168 (SE)).

[10] In the result I make the following order:

a) The conviction of accused No. 2 for the assault in Count 1 is set aside;

b) The conviction of both accused No. 1 and No. 2 for assault and robbery in counts 11 and 111 are confirmed;

c) The sentence passed against accused No. 1 is set aside and substituted with the following sentence”

1. “The accused is sentenced to undergo a period of three (3) years imprisonment;

2. Count 1,2 and 3 are treated as one for purposes of sentences

3. The new sentence is antedated to 22 October 2007

d) The sentence passed against accused No. 2 is set aside. The matter is remitted to the trial magistrate in order for her:

1. To consider a sentence in terms of Section 290 of the Criminal Procedure Act.

2. To urgently obtain a probation officers pre-sentence report in consideration of a proper passing of sentence.

4. Such future sentence to take into account that the accused had already served at least eight (8) months of the sentence passed. Therefore any future sentence to be ante dated to 22 October 2007.

5. Pending the passing of such sentence, the accused is released forthwith.

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KHUZWAYO AJ

ACTING JUDGE OF THE HIGH COURT

I AGREE: PAKADE J

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JUDGE OF THE HIGH COURT

DELIVERED ON: 26 JUNE 2008

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