S v Modau and Another (3/2003) [2003] ZANWHC 4 (30 January 2003)

CA NO: 3/2003

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE

STATE

and

MALESELA WILLIAM MODAU & ANOTHER

REVIEW

JUDGMENT

PISTOR AJ:

The evidence in this case reveals that accused no. 1 assaulted the complainant by stabbing her with a broken bottle whilst accused no. 2 assaulted the complainant by hitting her once with an open hand. Accused no. 1 was consequently convicted of assault with the intention to do grievous bodily harm whilst accused no. 2 was convicted of assault. The sentence was as follows:

“Accused no.1: R2 000-00 or four months imprisonment of which R1 500-00 or 3 months imprisonment suspended for three years on condition that the accused not being convicted of assault or AGB committed during the period of suspension.

Accused no. 2: R1 500-00 or four months imprisonment of which R900-00 or 3 months imprisonment suspended for three years on condition that the accused not being convicted of assault or AGB committed during the period of suspension.”

The matter came on automatic review and was originally put before my brother MOGOENG J (as he then was) who raised the following query:

“1. Why did the Court impose the same term of imprisonment on accused 1 who stabbed the complainant with a bottle and accused 2 who only smacked the complainant?

Why is 4 months imprisonment in count 1 equated to R2 000.00 whereas it is considered to be the equivalent of R1 200.00 in count 2?

Is the sentence in count 1 not too lenient?

Is the sentence imposed on accused 2 not too severe?”

(The reference to count 1 in the query appears to be a typing error and ought to be a reference to accused 1 since there was only one count.)

The learned presiding magistrate has now responded to the query of my learned brother and remarks as follows:

“When I reconsider the sentence I gave to Accused no 2,

I come to a conclusion that the sentence I have imposed is an unbalanced and unreasonable sentence taking in consideration the crime she committed. I am humbly suggesting to the Honourable The Reviewing Judge to change the sentence to:

R600.00 (six hundred Rand) or 03 (three) months imprisonment, of which R400.00 (four hundred Rand) or 02 (two) months imprisonment is suspended for a period of 2 (two) years on condition that the accused is not convicted of the offence of assault committed during the period of suspension.

(R200.00 is equivalent to one month imprisonment.)

Accused 1:

I am of the opinion that the sentence is appropriate, taking in consideration the ordinary requirements and especially accused 1’s personal circumstances. The community in Ga-Rankuwa is in general very poor and mostly unemployed. Accused is trying to create a salary and income for his family and dependants. He is a valuable member to the community, assisting them to get hold of cheaper clothing.

In his position, I am of the opinion that the fine as imposed is severe, if one is looking at the impact of R500.00 on his life style and his family, also what it is taking from him to earn R500.00. I don’t want to break him in punishing him.

(R500.00 is equivalent to one month imprisonment taking his personal circumstances and income in consideration.)”

In view of the learned magistrate’s reasons for the sentence imposed in respect of accused no. 1, I am disinclined to interfere with such sentence on review.

I agree with the concern expressed by my learned brother and with the suggestion by the learned presiding magistrate, both of which are to the effect that the sentence of accused no. 2 is too severe. In my view the sentence suggested by the learned presiding magistrate in her reasons is appropriate. Consequently I make the following order:

The conviction and sentence of accused no. 1 are confirmed.

The conviction of accused no.2 is confirmed.

The sentence imposed on accused no. 2 is set aside and is substituted with the following sentence:

“R600.00 or 3 months imprisonment of which R400.00 or 2 months imprisonment is suspended for a period of 2 years on condition that the accused is not convicted of the offence of assault, committed during the period of suspension.”

J H F PISTOR

ACTING

JUDGE OF THE HIGH COURT

30 JANUARY 2003