S v Gontsini (CA&R263/06 , 53/2006) [2006] ZAECHC 61 (15 November 2006)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ no : 53

PARTIES: BONAKELE

GONTSINI APPELLANT

AND

THE

STATE RESPONDENT

REFERENCE NUMBERS -

Registrar: CA&R263/06

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE HEARD: 15/11/06

DATE DELIVERED: 15/11/06

JUDGE(S): C.

PLASKET

LEGAL REPRESENTATIVES -

Appearances

:

for the State/Applicant(s)/Appellant(s): ADV.

N SANDI

for the accused/respondent(s): ADV. L. NGALWANA

Instructing attorneys:

Applicant(s)/Appellant(s):

MLONYENI LESELE INC.

Respondent(s):

DPP

CASE INFORMATION -

Nature of proceedings : CRIMINAL

APPEAL

Topic:

Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA&R263/06

DATE HEARD: 15/11/06

DATE DELIVERED: 15/11/06

NOT REPORTABLE

In the matter between:

BONAKELE GONTSINI APPELLANT

and

THE STATE RESPONDENT

______________

Appeal against sentence. The appellant had been convicted of assault with intent to commit grievous bodily harm and sentenced to 12 months imprisonment. The appellant was a prison warder who had, while on duty, stabbed a fellow prison warder who was taking part in a work stoppage. Held that the magistrate had not misdirected himself in imposing sentence and the sentence did not induce a sense of shock on account of its severity. The appeal was dismissed and the sentence was confirmed.

JUDGMENT

PLASKET J

[1] The appellant was convicted in the Magistrates Court, King William’s Town of assault with intent to do grievous bodily harm. He was sentenced to 12 months imprisonment and now appeals against sentence only.

[2] The trial court found – correctly, in my view – that on 7 February 2005 and at the King William’s Town prison, the appellant had stabbed the complainant with a knife. The complainant’s injuries were a stab wound of about three centimetres on the outside of his left arm and a wound of about a half a centimetre on the inside of the left arm where the knife blade exited. It is not clear whether the knife blade penetrated into the complainant’s chest. Although there is an indication to this effect on the diagrammatic representation of the wounds on the J88 form, the rest of the form makes no mention of such a wound. I take the view, however, that whether such a wound was inflicted or not makes no difference for purposes of this appeal and to the extent that it may be suggested that the magistrate erred in taking such a wound into account, such misdirection is not material.

[3] On the day of the incident, the complainant had gone to the prison to collect a letter informing him of his suspension from his employment as he and a number of other prison warders had been taking part in a work stoppage. He was confronted by the appellant who was not taking part in the work stoppage and was on duty. The appellant confronted the complainant, shouting and swearing at him. When the complainant walked away form him, the appellant drew a knife, followed him to an office that the complainant had entered, and stabbed him. The complainant was taken to hospital to have his wounds attended to.

[4] The appellant’s version on the merits was that the complainant had insulted him, had slapped him and had tried to stab him. He stated that the complainant had been stabbed with his own knife during the course of the scuffle between the two as he tried to prevent the complainant from stabbing him. This version was correctly rejected as false by the magistrate.

[5] It is argued by Mr Sandi for the appellant that the sentence is shockingly inappropriate and ought to be set aside. There is no merit in his argument.

[6] The facts of the case demonstrate amply that the offence of which the appellant was convicted was a serious one. The wounds inflicted may not have been particularly serious on their own but considerable force must have been used to have caused them. Furthermore, the complainant testified that the appellant was intent on stabbing him in the heart but, as he put it, ‘what saved me is that I just slid my arm towards the heart so that’s why he stabbed me on the arm.’ The complainant also testified that the appellant had wanted to stab him a second time but aborted this plan and ran away.

[7] The offence is aggravated by two further factors. The first is that the appellant is not a first offender: he has two previous convictions for assault (as well as four for driving offences). Secondly, the attack on the complainant took place in a public institution – a prison – while the appellant was on duty.

[8] I can see no material misdirection on the part of the magistrate that would allow us to interfere on appeal with the sentence that he imposed. Furthermore, in my view, the sentence certainly does not induce a sense of shock on account of its severity. Indeed, it appears to me to be an appropriate sentence in the circumstances that I have outlined.

[9] The appeal is accordingly dismissed and the appellant’s sentence is confirmed.

_____

C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

______

H. J. LIEBENBERG