S v Molwantoa (56/2002) [2002] ZANWHC 29 (18 July 2002)

CA NO. 56/2002

IN

THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

THE STATE

VS

KEITUMETSE

MOLWANTOA

REVIEW

Pako A.J.: The accused is a 25 years old male person. He was charged, at the Magistrate Court, with the offence of assault with intent to do grievous bodily harm. After evidence was led, he was found guilty as charged . The conviction is in order. He was sentenced to R6000-00 or 12 months imprisonment, half of which was suspended conditionally for a period of five years.

Evidence tendered at the court a quo is to the effect that the accused went to the complainant’s home on the 8 December 2001. He suddenly assaulted the complainant by hitting her several times with open hands and fists on her body and face. He also kicked her several times on her body and face. Whilst the complainant was still lying down, he trampled her body with his feet with shoes on. As a result of this assault the complainant sustained multiple injuries. She received medical treatment in respect of those injuries. The accused’s evidence that he was acting in self-defence was rejected.

The matter came before my Sister Leeuw J on automatic review. She then requested the magistrate to respond, amongst others, to the following question:- Why did the magistrate impose such a severe sentence and “if indeed the intention of the learned magistrate was to afford the accused an opportunity of staying out of jail by fixing a fine, how does she expect him with a meagre income, to pay this fine?” The learned magistrate, in response to this question persisted that the sentence she imposed is appropriate. In justifying the sentence, the learned magistrate, amongst others, stated that the principle that the amount of fine should be within the means of the accused is flexible. She also stated that she imposed such a fine with the hope that the accused’s relatives will assist him in paying the fine. In imposing sentence a trial court has a wide and unfettered discretion. For that reason a Court of appeal or a judge cannot just interfere with the sentence imposed by a trial court unless the discretion was not judicially exercised (See S v De Jager and Another 1965 (2) SA 616 (A) at 628 and 629). There are, of course, no binding rules laid down as far as the imposition of a fine is concerned. But there are certain guidelines which have been developed. The trial court should follow such guidelines. Firstly, the presiding officer must obtain the necessary facts before deciding on a fine, and secondly, the fine imposed should not be utterly beyond the means of the accused to pay [See S v Scheepers 1977 (2) SA 154 (A) at 160 A: S v Sithole and Another 1979 (2) SA 67 (A) at 69 B-G; S v Lekgoale and Another 1983 (2) SA 175 (B); and S v Ndamase 1973 (3) SA 614 (E)].

The matter came before my Sister Leeuw J on automatic review. She then requested the magistrate to respond, amongst others, to the following question:-

Why did the magistrate impose such a severe sentence and “if indeed the intention of the learned magistrate was to afford the accused an opportunity of staying out of jail by fixing a fine, how does she expect him with a meagre income, to pay this fine?”

The learned magistrate, in response to this question persisted that the sentence she imposed is appropriate. In justifying the sentence, the learned magistrate, amongst others, stated that the principle that the amount of fine should be within the means of the accused is flexible. She also stated that she imposed such a fine with the hope that the accused’s relatives will assist him in paying the fine.

In imposing sentence a trial court has a wide and unfettered discretion. For that reason a Court of appeal or a judge cannot just interfere with the sentence imposed by a trial court unless the discretion was not judicially exercised (See S v De Jager and Another 1965 (2) SA 616 (A) at 628 and 629). There are, of course, no binding rules laid down as far as the imposition of a fine is concerned. But there are certain guidelines which have been developed. The trial court should follow such guidelines. Firstly, the presiding officer must obtain the necessary facts before deciding on a fine, and secondly, the fine imposed should not be utterly beyond the means of the accused to pay [See S v Scheepers 1977 (2) SA 154 (A) at 160 A: S v Sithole and Another 1979 (2) SA 67 (A) at 69 B-G; S v Lekgoale and Another 1983 (2) SA 175 (B); and S v Ndamase 1973 (3) SA 614 (E)].

It is clear from the record of the proceedings that the accused was all the time not employed and that he was recently employed as a casual labourer earning R600-00 per month. It was, therefore, clear that the accused would not be able to pay half of the fine imposed. The learned magistrate acknowledged this fact in her response to the query raised. In fact the accused did not manage to pay that fine and he is now serving a term of imprisonment. The fine was utterley beyond the accused’s means. The learned magistrate did not make any inquiry to ascertain whether any of the accused’s relatives is willing and is able to pay the fine imposed. If the court imposes a fine far beyond the accused’s means to pay, it must obtain the necessary facts which will enable it to decide whether the accused can be given opportunity of avoiding imprisonment by giving him chance to raise the money, for instance, be selling assets, or by appealing to his family or friends for assistance (See S v Heilig 1999 (1) SACR 379 (W); S v Makobe 1991(2) SACR 456 (W) at 461 d-g). The learned magistrate was, therefore wrong to assume that the accused’s relatives may assist him in paying the fine.

It is clear from the record of the proceedings that the accused was all the time not employed and that he was recently employed as a casual labourer earning R600-00 per month. It was, therefore, clear that the accused would not be able to pay half of the fine imposed. The learned magistrate acknowledged this fact in her response to the query raised. In fact the accused did not manage to pay that fine and he is now serving a term of imprisonment.

The fine was utterley beyond the accused’s means. The learned magistrate did not make any inquiry to ascertain whether any of the accused’s relatives is willing and is able to pay the fine imposed. If the court imposes a fine far beyond the accused’s means to pay, it must obtain the necessary facts which will enable it to decide whether the accused can be given opportunity of avoiding imprisonment by giving him chance to raise the money, for instance, be selling assets, or by appealing to his family or friends for assistance (See S v Heilig 1999 (1) SACR 379 (W); S v Makobe 1991(2) SACR 456 (W) at 461 d-g). The learned magistrate was, therefore wrong to assume that the accused’s relatives may assist him in paying the fine.

The other reason advanced by the learned magistrate for imposing a fine beyond the accused’s means, is that the offence is so serious that to impose a fine which is within the means of the accused “will be tantamount to treating the accused with a velvet glove”. The offence with which the accused is convicted is, in deed, very serious and a minimal fine would not have been appropriate. It is clear that the learned magistrate, when imposing a fine beyond accused’s ability to pay, was in reality imposing a direct imprisonment in the disguise form of alternative imprisonment. (See S v Manwere 1972 (4) SA 425 (RA); S v Nyati 1973 (1) SA 553 (R).The learned magistrate did not exercise her discretion judicially when deciding on and imposing such a fine. For the afore-going reasons, the sentence imposed by the court a quo has to be interfered with by setting it aside and substituting it with another. The sentence imposed on the accused is accordingly set aside. In its place is substituted: “Twelve (12) months imprisonment half of which is suspended for five (5) years on condition that the accused is not convicted of an offence involving assault committed during the period of suspension and in respect of which he is sentenced to imprisonment without an option of a fine”. The sentence is antedated with effect from the 25 April 2002. O.A. PAKO

ACTING JUDGE OF THE HIGH

COURT DATED: 18 JULY 2002

The other reason advanced by the learned magistrate for imposing a fine beyond the accused’s means, is that the offence is so serious that to impose a fine which is within the means of the accused “will be tantamount to treating the accused with a velvet glove”. The offence with which the accused is convicted is, in deed, very serious and a minimal fine would not have been appropriate. It is clear that the learned magistrate, when imposing a fine beyond accused’s ability to pay, was in reality imposing a direct imprisonment in the disguise form of alternative imprisonment. (See S v Manwere 1972 (4) SA 425 (RA); S v Nyati 1973 (1) SA 553 (R).The learned magistrate did not exercise her discretion judicially when deciding on and imposing such a fine.

For the afore-going reasons, the sentence imposed by the court a quo has to be interfered with by setting it aside and substituting it with another. The sentence imposed on the accused is accordingly set aside. In its place is substituted:

“Twelve (12) months imprisonment half of which is suspended for five (5) years on condition that the accused is not convicted of an offence involving assault committed during the period of suspension and in respect of which he is sentenced to imprisonment without an option of a fine”.

The sentence is antedated with effect from the 25 April 2002.

O.A. PAKO

ACTING JUDGE OF THE HIGH

COURT

DATED: 18 JULY 2002