Barker v S (35/2015) [2015] ZANCHC 42 (27 November 2015)

IN

THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

CASE NO: 35/2015

DATE DELIVERED: 27/11/2015

In the matter between:

ROGER

BARKER

Appellant

and

THE

STATE

Respondent

Coram: Olivier J et Pakati, J

JUDGMENT

Olivier J:

[1.] The accused in this matter was convicted on two counts, one of assault and one of assault with intent to cause grievous bodily harm. On the two counts taken together he was sentenced to “6 months imprisonment or a R1,000.00 fine which is wholly suspended for a period of 3 years on condition Accused is not convicted of assault with intent to do grievous bodily harm”.

[2.] As he was represented at the trial the matter is not automatically reviewable. It has, however, been submitted for special review in terms of Section 304(4) of the Criminal Procedure Act[1]. The Magistrate has correctly pointed out that the condition of suspension of the sentence did not qualify and restrict it to a contravention committed during the period of suspension.

[3.] In my view the sentence of imprisonment should also have been an alternative to the sentence of a fine, and not the other way around[2].

[4.] Otherwise the sentence is in my view in accordance with justice, and so are the convictions.

[5.] The following orders are therefore made:

1. THE CONVICTIONS ARE CONFIRMED.

2. THE SENTENCE IS AMENDED TO READ AS FOLLOWS:

“A

FINE OF R1,000.00 OR 6 MONTHS IMPRISONMENT, WHOLLY SUSPENDED FOR A PERIOD OF 3

YEARS ON

CONDITION THAT

THE ACCUSED

IS NOT

CONVICTED OF

ASSAULT WITH

INTENT TO CAUSE GRIEVOUS BODILY HARM COMMITTED DURING THE PERIOD OF SUSPENSION.”

______

C

J OLIVIER

JUDGE

NORTHERN

CAPE DIVISION

I agree and it is so ordered.

____

B

M PAKATI

[1] 51 of 1977

[2] Compare Section 287(1) of the Criminal Procedure Act