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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CA 17/11

In the matter between:

AOBAKWE REGINALD MAKGETLA ...........................................Appellant

and

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

CRIMINAL APPEAL

HENDRICKS J; GURA J

DATE OF HEARING : 08 FEBRUARY 2013

DATE OF JUDGMENT : 14 FEBRAURY 2013

COUNSEL FOR THE APPELLANT : ADV NKHAHLE

COUNSEL FOR THE RESPONDENT : ADV MOGOENG

JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] The Appellant was charged with and pleaded guilty to two counts of assault with intent to do grievous bodily harm and two counts of malicious injury to property. He was convicted on all four counts and sentenced as follows:-

On count 1 (Assault GBH) he was sentenced to six (6) months imprisonment .

On count 2 (Assault GBH) he was sentenced to twelve (12) months imprisonment.

On count 3 (Malicious injury to property) he was “fined R300-00 or two months imprisonment”.

On count 4 (Malicious injury to property) he was “fined R600-00 or four months imprisonment”.

The Appellant now appeals the sentence imposed upon him.

[B] The Merits:-

[2] The version of the Appellant as embodied in his Section 112 (2) plea explanation is as follows:-

“2.5. On the day in question, I was from work and went to the shops to go and buy a cigarette. On my way there, I met one lady by the name of Mimi and asked her about his [sic] brother’s whereabouts. Whilst talking to her, a guy by the name of Aobakwe Buys (come) and he asked me as to why I was talking to his girlfriend and I responded by saying I was just asking her about his [sic] brother’s whereabouts. He told me to leave his girlfriend alone and he further insulted me.

2.6. I further confirm that on that particular day, I was under the influence of alcohol and was drunk. After Aogakwe Buys insulted me, being one of the complainants in this matter, I took out a panga and stabbed him somewhere on the head together with Mimi, whom [sic] is also one of the complainants in this matter, but I did not see the extent of her injuries and afterwards I ran away.

2.7. Whilst running I passed one house, whereby I was confronted by the owner thereof and he greeted me by saying I am a thief. I then turned towards him and proceeded to his house and whilst approaching the house he locked the front door and I went at the back of his house and broke two (2) of his windows.

2.8. Whilst there his neighbour called me and asked as to why I was breaking someone else’s windows and that they are going to call the police to come and arrest me and he further insulted me and I also broke his windows.”

[3] The following mitigating and personal circumstances of the Appellant was placed on record:-

• He is 20 years of age;

• he was employed as a casual worker at Wildeklabor for a period of 5 months when he was sentenced;

• he was maintaining his mother who is unemployed and younger brother aged 7 years old financially, and his father is deceased;

• he is a first offender because he has no previous convictions or pending criminal cases;

• the crime was not pre-meditated, but occurred spontaneously and he was provoked by the complainants;

• he had already spent four weeks in custody.

[4] It is conceded by the State that the cumulative effect of the sentence induces a sense of shock. In my view, this concession was indeed well made in view of the fact that the Magistrate did not order that the sentences on counts 1 and 2 should run concurrently.

[5] There is also no plausible explanation for the disparity in the sentence on these two counts, having particular regard to the fact that these offences were committed on the same day at approximately the same time and under more or less the same circumstances. The same also apply to counts 3 and 4.

[6] Whilst it must be appreciated that sentencing is primarily in the discretion of the presiding officer and that a court of appeal will not lightly interfere with the exercise of such discretion, the disparity in the sentences imposed as well as the fact that the sentences were not ordered to run concurrently, amounts in my view, to a misdirection on the part of the Magistrate, which entitles this Court to interfere.

See:- S v Malgas 2001 (1) SACR 469 (SCA),

S v Saddler 2001 (1) SACR 331 (SCA).

[C] Conclusion:-

[7] Having regard to the personal circumstances of the Appellant, the nature and seriousness of the offences of which he is convicted, as well as the interest of society, the sentences as outlined in the order below will, in my view, be appropriate:-

[D] Order:-

[8] Consequently, the following order is made:-

[i] The conviction is confirmed.

[ii] The appeal against sentence succeeds.

[iii] The sentence imposed by the Magistrate is set aside and replaced by the following sentence:-

“The accused is sentenced as follows:-

On count 1 six (6) months imprisonment.

On count 2 six (6) months imprisonment.

The sentences on counts 1 and 2 are ordered to run concurrently.

On count 3 the accused is ordered to pay a fine of R300-00 or serve three (3) months imprisonment.

On count 4 the accused is ordered to pay a fine of R300-00 or serve three (3) months imprisonment.”

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT:- LEGAL AID

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