S v Mashibye (A939/2005) [2005] ZAGPHC 292 (1 August 2005)

S v Mashibye (A939/2005) [2005] ZAGPHC 292 (1 August 2005)

The court found that although the accused indicated the complainant as a wizard, the evidence established that he was extremely drunk at the time. The defence witness was credible and unbiased, and the complainant and others did not care about the accusation due to the accused's intoxication. The magistrate's conclusion that the accused could appreciate the wrongfulness of his acts was not supported by the evidence. Accordingly, the State failed to prove that the accused's faculties were unimpaired by liquor. The conviction under the Witchcraft Suppression Act was set aside and substituted with a conviction under section 1(1) of the Criminal Law Amendment Act 1 of 1988. In sentencing, the...

Citation
[2005] ZAGPHC 292
Parties
Applicant: The State; Respondent: Thomas Mashibye
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 August 2005
Case Number
A939/2005
Procedural Posture
Criminal Review / Review Judgment
Outcome
Conviction under the Witchcraft Suppression Act set aside and substituted with conviction under section 1(1) of Act 1 of 1988. Sentence of ten years imprisonment set aside and substituted with four years imprisonment, half suspended for five years on condition.
Judges
I W B De Villiers, W J Van Der Merwe
Legal Topics
Witchcraft Suppression Act, Criminal Capacity, Intoxication, Sentencing Principles
Criminal Law Witchcraft Suppression Act Criminal Capacity Intoxication Sentencing Principles

Case Brief

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Parties

The State

Applicant

Thomas Mashibye

Respondent

Procedural Posture

Criminal Review / Review Judgment

Legal Issues

  1. 1 Whether the accused had criminal capacity at the time of the offence due to intoxication.
  2. 2 Whether the conviction under the Witchcraft Suppression Act was appropriate.
  3. 3 What is the appropriate sentence given the circumstances.

Ratio Decidendi

The court found that although the accused indicated the complainant as a wizard, the evidence established that he was extremely drunk at the time. The defence witness was credible and unbiased, and the complainant and others did not care about the accusation due to the accused's intoxication. The magistrate's conclusion that the accused could appreciate the wrongfulness of his acts was not supported by the evidence. Accordingly, the State failed to prove that the accused's faculties were unimpaired by liquor. The conviction under the Witchcraft Suppression Act was set aside and substituted with a conviction under section 1(1) of the Criminal Law Amendment Act 1 of 1988. In sentencing, the...

Court Disposition

Conviction under the Witchcraft Suppression Act set aside and substituted with conviction under section 1(1) of Act 1 of 1988. Sentence of ten years imprisonment set aside and substituted with four years imprisonment, half suspended for five years on condition.

Orders

  • The conviction is set aside and substituted by a conviction in terms of section 1(1) of Act 1 of 1988.
  • The sentence is set aside and substituted by a sentence of four years imprisonment, half of which is suspended for five years on condition that the accused is not found guilty of a contravention of section 1 of Act 3 of 1957 or section 1(1) of Act 1 of 1988 during the period of suspension.