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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(Functioning as LIMPOPO LOCAL DIVISION, THOHOYANDOU)

P.02/2015

Dzanani Magistrate: Case No. A320/15

DATE: 16 SEPTEMBER 2015

In the matter between:

VHUTSHILO JOSEPH TSHOTEU........................................................................................Petitioner

And

THE STATE............................................................................................................................Respondent

JUDGMENT

PHATUDI J

[1] The petitioner was unrepresented when he pleaded guilty at Dzanani Magistrate’s Court on contravention of the provisions of section 17(a) read with related sections of the Domestic Violence Act 116 of 1998.

[2] The petitioner was convicted as charged and sentenced to 3 years direct imprisonment. The trial court refused the petitioner with leave to appeal. The petitioner is now petitioning the Judge President for leave to appeal.

[3] It is trite law that the test for application for leave to appeal is whether the appellant has prospects of success on appeal.

[4] On the 13 May 2015, a protection order was granted against the petitioner in terms of section 7 of Domestic Violence Act (DVA) not to (among others) assault or insult the complainant. On 17 May 2015, the petitioner assaulted the complainant by hitting her with the back of an axe, thus contravening section 17(a) DVA. The complainant sustained a fractured right forearm as depicted in the medical report commonly known as J88.

[5] Section 17(a) of Domestic Violence Act 116 of 1998 provides: "Notwithstanding the provisions of any other law, any person who

(a) contravenes any prohibition, condition, obligation or orders imposed in terms of section 7...

(b) - (c)...

is guilty of an offence and liable on conviction in the case of an offence referred to in paragraph (a) to a fine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment ...^H

[6] When dealing with the sentence, the trial court considered (rightly so) the triad principle as spelt out in S v Zinn 1969 (2) SA 537 (A) and S v Scheepers 1977 (2) SACR 154. The trial court considered the petitioner’s personal circumstances, the seriousness of the offence and the interest of the society. The trial court further considered other sentencing options which were found not to be suitable in the circumstances.

[7] Of importance is that the DVA prescribes the sentence to be imposed in the event of contravention of any provisions of the Act. The prescribed sentence is “a fine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment”.

[8] When the petitioner adduced evidence in mitigation as envisaged in terms of section 274(1) of Criminal Procedure Act 51 of 1977, the trial court enquired from him as follows:

“COURT: How old are you “ACCUSED: 35 years

“COURT: Are you employed?

“ACCUSED: Right now I am not working. I (Inaudible) promises that I should get."

[9] It is clear from the record that the trial court considered an option of a fine. It is stated

*‘The court considers as to whether are you a suitable candidate to be given a sentence with an option to pay fine? The court finds that you are not a suitable candidate to be given a sentence option with an option to pay fine".

[10] Considering that the petitioner was unemployed at the time he was sentenced, I am unable to fault the trial court's finding that the petitioner is “not a suitable candidate to be given a sentence with an option of a fine.”

[11] The only sentence option that was left for the trial court’s consideration was a direct imprisonment.

[12] It is trite law that sentencing is in the discretion of the trial court. The appeal court can only interfere if the trial court misdirected itself in imposing the sentence or if the sentence is disproportionate to the offence committed.

[13] The trial court considered the injuries sustained by the complainant. The complainant sustained “fractured right forearm”. The trial court was at pains to find a sentence that is proportionate to the offence committed considering the prescribed sentences set out in terms of DVA vis-3-vis the petitioner's conduct.

[14] In my evaluation of the evidence adduced and found to have been proven, I am unable to fault the trial court. In short, there are no prospects of success on appeal let alone that other courts may come to a different conclusion. In the result, I make the following order:

14.1 The petitioner’s application for leave to appeal against sentence is refused.

AMLPHATDDI

Judge of the High Court

I agree

MF KGANYAGO

Acting Judge of the High Court

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