S v Makondo (A398/2009) [2009] ZAGPPHC 245 (15 May 2009)
- Citation
- [2009] ZAGPPHC 245
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- M F Legodi, WL Seriti
- Case number
- A398/2009
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- M F Legodi, WL Seriti
- Case number
- A398/2009
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The reviewing judge was satisfied, after queries to the trial court and the Office of the Director of Public Prosecutions, that the accused's conviction for assault with intent to do grievous bodily harm was in accordance with justice. The accused, a first offender and scholar, had properly elected to proceed without legal representation. However, given his inability to pay the fine and his personal circumstances, the sentence was found to be unduly harsh. The court accepted the recommendation to suspend half of the sentence, thereby entitling the accused to immediate release unless detained for another matter.
Court disposition
Conviction confirmed; sentence set aside and substituted with suspension of half the sentence.
Orders
- The conviction of the accused is confirmed.
- The sentence is set aside and substituted: The accused is sentenced to R2000 or 6 months imprisonment, half of which is suspended for three years on condition that the accused is not found guilty of assault with intent to do grievous bodily harm during the period of suspension.
- The accused, if not yet released, should be released from prison unless detained in connection with another case.
02
Material facts
Parties
The State
RespondentTimmy Fikile Makondo
AppellantAmounts and remedies
- Original Fine Imposed: ZAR 2,000
- Fine the Accused Could Afford: ZAR 200
03
Procedural history
Posture
Review Application / High Court Review of Magistrate's Conviction and Sentence
04
Questions and positions
Legal issues
- 01
Whether the accused's intention to do grievous bodily harm was proved.
- 02
Whether the accused properly elected to proceed without legal representation.
- 03
Whether the conviction was in accordance with justice.
- 04
Whether the sentence imposed was appropriate given the accused's circumstances.
Party arguments
- Applicant
- The accused, a 19-year-old first offender and scholar, was convicted and sentenced to R2000 or six months imprisonment for assault with intent to do grievous bodily harm. He indicated he could only afford R200. The appropriateness of the conviction and sentence, as well as the accused's election to proceed without legal representation, were queried.
- Respondent
- The Office of the Director of Public Prosecutions recommended that half of the sentence be suspended, which would entitle the accused to immediate release. They commented on the issues raised by the reviewing judge and supported the conviction as being in accordance with justice.
05
Court’s reasoning
Legal principles
- 01
General principles of South African criminal law
A conviction must be in accordance with justice and based on proof of the requisite intention for the offence charged.
- 02
Section 35(3)(f) of the Constitution of the Republic of South Africa, 1996
An accused must properly elect to proceed without legal representation, and the court must ensure this choice is made freely and with understanding.
06
Ratio, limits and disposition
Ratio decidendi
The reviewing judge was satisfied, after queries to the trial court and the Office of the Director of Public Prosecutions, that the accused's conviction for assault with intent to do grievous bodily harm was in accordance with justice. The accused, a first offender and scholar, had properly elected to proceed without legal representation. However, given his inability to pay the fine and his personal circumstances, the sentence was found to be unduly harsh. The court accepted the recommendation to suspend half of the sentence, thereby entitling the accused to immediate release unless detained for another matter.
Obiter and limits
- The court noted the importance of ensuring that young first offenders are not unduly burdened by sentences that do not take their personal circumstances into account.
- The reviewing process serves as a safeguard to ensure justice is done, especially where questions arise regarding intention and procedural fairness.
Court disposition
Conviction confirmed; sentence set aside and substituted with suspension of half the sentence.
- The conviction of the accused is confirmed.
- The sentence is set aside and substituted: The accused is sentenced to R2000 or 6 months imprisonment, half of which is suspended for three years on condition that the accused is not found guilty of assault with intent to do grievous bodily harm during the period of suspension.
- The accused, if not yet released, should be released from prison unless detained in connection with another case.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH-GAUTENG HIGH COURT, PRETORIA)
High Court Ref no.: 218
Magistrate Serial no.: 04/09
Case no.: A16/09
CASE NO:A398/2009
DATE:15/05/2009
IN THE MATTER BETWEEN
THE
STATE
v
TIMMY
FIKILE MAKONDO
REVIEW
JUDGMENT
Legodi J,
When this matter was initially brought before me, I directed certain queries to the trial court. These queries were with reference to whether intention to do grievous bodily harm has been proved and secondly, whether the accused had properly made a choice to proceed with the trial without legal representation.
The trial court and the Office of the Director of Public Prosecutions had now made comments on the issues I had previously raised and I am satisfied that the conviction was in accordance with justice.
The accused who was about 19 years old and a scholar doing grade 12 was sentenced to R2000 or six months imprisonment. During sentencing, the accused indicated that he could afford to pay R200. He was a first offender. He was sentenced on the 12January 2009 and apparently could not afford to pay the fine. For this reason, Advocate L A More and H M Meintjies SC of the Office of the Director of Public Prosecutions, recommended that half of the sentence be suspended which will have the effect of the accused been entitled to an immediate release. I agree and the accused's release has already been ordered.
Accordingly, I would make an order as follows:
1. The conviction of the accused is confirmed.
2. The sentence is hereby set aside and substituted as follows:
"The accused is sentenced to R2000 or 6 months imprisonment, half of ivhich is suspended for a period of three years on condition that the accused is not found guilty of an assault with intent to do grievous bodily harm committed during the period of suspension"
3. The accused if not released yet should immediately be released from prison unless otherwise detained in connection with another case.
M
F LEGODI
JUDGE
OF THE HIGH COURT
I, agree it is so ordered
WL
SERITI
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