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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

High Court Ref.: 525

Mag. No: 400/2007

In the matter between:

STATE

and

HASANI DIVISION MAKHUBELE Applicant

REVIEW

1. The Applicant was convicted in the magistrate court with assault with intent to do grievous bodily harm and sentenced to 3 years imprisonment.

2. The matter was laid before me on automatic review. Upon perusing the record I gained the impression that the sentence of 3 years imprisonment was disproportionate to the gravity of the offence. I could therefore not confirm that the proceedings were in accordance with justice. I requested the magistrate to furnish reasons for the imposition of a 3-year term of imprisonment and enquired whether that he had not considered other sentencing options than direct imprisonment

3. In reply the magistrate advanced the following reasons:

"Mr. Hasani Division Makhubela was not provoked. He used a knife which is a dangerous weapon to a defenceless elderly person inflicting him an ugly wound. Accused has a previous conviction and it seems that he did not team from the past experience; Hence the sentence of 3 years imprisonment."

I shall deal with the magistrate's reasons later in my judgment.

4. The facts giving right to the conviction of the accused are that on or about 16th December 2007 the accused did unlawfully and intentionally assault Mutavini Phaweni by stabbing her with a knife with intent to do grievous bodily harm. The accused was unrepresented during the proceedings. He pleaded not guilty to the charge, whereafter the case took its ordinary course. The complainant testified that on the day in question at about 19h00 she was at her home when she was suddenly confronted by the accused. She was stabbed on the upper left-arm once. Thereafter fled to a neighbour place; accused followed her and inflicted a scratch wound on the upper left-arm. She was treated at Malamulele Hospital and discharged on the same day.

5. During cross-examination it transpired that complainant was alone and it was dark when the incident took place; the accused is known to her. The accused denied that he was at her place on the day in question and that he never stabbed her with a knife. Mr. Mashaba stated he is a complainant's neighbour. On the day in question he was at his home when he heard complainant crying. When he went out of his house he saw complainant run into her premises, accused following her with a knife in his hand. He confronted the accused but the latter threatened him with violence; however the accused turned back at the gate. Cross-examination with this witness did not elicit any contradiction or any new facts. The accused placed identity in issue and averred that the witness and complainant were falsely incriminating him. Accused stated that he was in prison and after his release he went to the Reef and only returned to the area on the 14th December 2007.

6. Accused told the court that the witnesses had concocted a case
against him and his defence was a bare denial of the charge against

him.

7. The accused was correctly convicted of the offence. In mitigation he stated that the court should not impose a sentence of more than 5 years as he was still on parole he had broken his parole conditions. He told the court that he was employed by a construction company at a salary of R700.00 per month. He was unmarried, he has previous convictions: 2 counts of house-breaking committed in 2004 for which he was sentenced to 8 years imprisonment. The public prosecutor requested that accused be given a sentence with the option of a fine.

8. In his sentence preparatory remarks the magistrate pointed out that the assault on the complainant was unprovoked, complainant was attacked at her home and had to flee to her neighbour place for her safety. The complainant was an elderly person. The sentence of 8 years previously imposed on the accused did not have any salutary effect; hence he imposed a sentence of 3 years imprisonment.

9. It is clear that the magistrate overemphasized the seriousness of the offence as well as the fact that complainant was an elderly person who was attacked in the sanctity of her home. Furthermore the magistrate overemphasized the interests of the community and overlooked the personal circumstances of the accused. In his reasons for sentencing the magistrate stated that:

'The court deemed it fitting to remove accused from society for the purpose of rehabilitation and protecting the community by deterring accused. The magistrate did consider other sentencing option and felt amongst others that direct imprisonment was a proper and fitting sentence to teach accused and others who are likely to fall in his trend. The court submit that justice at its best has been seen to be done seeing accused was not rubbing shoulders with the law for the first time."

10.He also referred the court to S v Myburg 2007 (1) SACR 11 where according to him it was said that:

".. .sentencing could not be treated as a mechanical act as that would defeat the court's discretion to impose the sentence that was appropriate to the facts of the case."

However he overlooked the fact that it was pointed out in that case that there was a need to "balance" the interests of society and those of the accused.

11. No medical report was handed in to show the nature and extent of the injuries sustained by the complainant. Though the magistrate took into account the impact of the offence on the victim, he however, overemphasized other elements of sentencing namely the gravity of the offence and the interests of the community, and in so doing relegated the personal circumstances of the accused to the background. Notwithstanding the fact that the prosecutor thought it fit to request the imposition of a fine, the magistrate emphasized the accused previous convictions and decided to impose what I would call "an exemplary sentence." The magistrate failed to strike a judicious balance between the competing interests/elements. Consequently he has misdirected himself. The sentence imposed is shockingly disproportionate to the gravity of the offence and induces a state of shock. This Court sitting as a court of first instance would not have imposed a similar sentence.

12. Having regard to the cumulative impact of the mitigating and aggravating circumstances, this Court is of the view that the following sentence would be appropriate in the circumstances of the case.

I therefore propose the following order:

1. The conviction of the accused is confirmed;

2. The sentence of 3 years imprisonment is set aside and substituted with the following:

In terms of s276(h)(i) the Accused is sentenced to 3 years imprisonment of which 2 years is suspended for 3 years on condition accused is not again convicted of an offence of which assault with intent to do grievous bodily harm is a competent verdict during the period of suspension.

T. J. VILAKAZI

ACTING JUDGE OF THE HIGH COURT

I agree.

E. M. MAKGOBA

JUDGE OF THE HIGH COURT

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