S v Letho (83/07) [2007] ZANWHC 75 (15 November 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO: 83/07

In the matter between:

THE

STATE

and

KHOTSO SIMON

LETHO

REVIEW

JUDGMENT

MOTSOMANE AJ:

[1] The accused was convicted of assault with intent to cause grievous bodily harm and sentenced as follows:

“(i) R8000 (Eighty thousand Rand) or four months imprisonment of which R6000 (six thousand rand) or 3 (three) months imprisonment for a period of 5 years on condition that accused is not convicted of Assault of AGBH committed during period of suspension.

(ii) Section 103 Act 51/77 declared unfit to possess a firearm for 5 years.

(iii) Deferred fine granted.”

[2] Monama AJ directed the following query to the presiding officer:

“[1] On what basis was the accused declared unfit to possess a firearm and on what basis is the accused unfitness to possess the fire arm only valid for 5 year.

Explain why an inquiry was not held. See S v Smith 2006 (1) SACR 307 (WLD) page 309 [“D – E”].

[2] R8000 (Eighty thousand Rand) or four months imprisonment of which R6000 (six thousand rand) or 3 (three) months imprisonment for a period of 5 years on condition that accused is not convicted of Assault of AGBH committed during period of suspension.

Section 103 Act 51/77 declared unfit to possess a firearm for 5 years.

Deferred fine granted.”

[3] The presiding officer replied as follows:

“This case is a case which was conducted at Bethanie periodical Court.

I am usually conducted the enquiry ito section 103 Act 60\2000 on a proforma.

On this day there were no proforma’s available at Bethanie.

I have explained all the provisions to the Accused in full (As per attached annexure)

It was my intention to complete the proforma when a copy was available, but it slipped out of my mind.

By the time I have received the typed record, I realised I have forgot about this issue, but I have conducted the enquiry as prescribed.

Iro the suspension of the fire arm licence, after I have already conducted this enquiry one of the Review Judge’s made a ruling in another review case I was doing, that a Magistrate is not having authority by law to declare the fire arm for a certain Period.

I humble request the Honourable Reviewing Judge to remove the portion “for five years”.

With regard to the sentence, I humble request the Honourable the Reviewing Judge That the words “is suspended” after the words 3(three) months imprisonment, to be added to the sentence.

I apologize for the unnecessary mistakes. I will take more care in future, as I realize work pressure is no excuse.”

[4] I am satisfied that the conviction is in accordance with justice. The sentence must be amended and is amended as follows:

“The conviction is confirmed but the sentence is substituted by the following:-

[i] R800 or four (4) months imprisonment of which R600 or three (3) months imprisonment is suspended for a period of five (5) years on condition that accused is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension.

[ii] Section 103 of Act 60 of 2000 applies and accused is declared unfit to possess a firearm.

[iii] Deferred fine granted.”

_____

R

H MOTSOMANE

ACTING

JUDGE OF THE HIGH COURT

I agree

____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

DATED : 15 NOVEMBER2007