S v Setatampe (113/01) [2001] ZANWHC 50 (15 November 2001)

CA NO : 113/01

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

THE

STATE

vs

WILLIAM

SETATAMPE

R E V I

E W

LEEUW J:

The accused was convicted of Assault with intent to do grievous bodily harm and sentenced to R8000-00 or two (2) years imprisonment.

It is alleged that he stabbed the complainant with a broken bottle and this resulted in the complainant sustaining serious injuries.

The accused is a scholar in Std 10, a first offender and has no previous convictions. The Magistrate did not enquire from the accused whether he had any other source of income from which he can be able to pay a fine.

In response to my query on the severity of the fine imposed, the Learned Magistrate stated amongst others, the following: “It is the Court’s strongest feeling that it is high time that scholars should learn to behave like scholars ..... the Court placed reliance on the provisions of the adjustment of fines act in sentencing the accused though they were not strictly adhered to by the Court as they stand.” It is not clear what the learned Magistrate refers to by “the adjustment of fines act”, but I nevertheless assume that he concedes that he did not adhere to the principles laid down in our law on sentencing especially in determining a fine. Furthermore, to fix a very stiff fine for an accused person because he has behaved in an unscholarly manner is not in accordance with the principles and guidelines laid down for the purpose of sentencing. I find that the Learned Magistrate has misdirected himself in considering sentence and that the sentence imposed induces a sense of shock and this would entitle me to interfere therewith. Although the Learned Magistrate failed to enquire into the ability of the accused to pay a fine, it is clear that the fine imposed does not justify the nature of the offence and is not consistent with the alternative of the two years imprisonment term imposed. Compare S v Mlazi & Another 1992 (2) SACR 673 (W). Because of the nature of the assault and the personal circumstances of the accused: The conviction is confirmed and the sentence is set aside and the following is substituted therefor:

In response to my query on the severity of the fine imposed, the Learned Magistrate stated amongst others, the following: “It is the Court’s strongest feeling that it is high time that scholars should learn to behave like scholars ..... the Court placed reliance on the provisions of the adjustment of fines act in sentencing the accused though they were not strictly adhered to by the Court as they stand.”

It is not clear what the learned Magistrate refers to by “the adjustment of fines act”, but I nevertheless assume that he concedes that he did not adhere to the principles laid down in our law on sentencing especially in determining a fine. Furthermore, to fix a very stiff fine for an accused person because he has behaved in an unscholarly manner is not in accordance with the principles and guidelines laid down for the purpose of sentencing. I find that the Learned Magistrate has misdirected himself in considering sentence and that the sentence imposed induces a sense of shock and this would entitle me to interfere therewith.

Although the Learned Magistrate failed to enquire into the ability of the accused to pay a fine, it is clear that the fine imposed does not justify the nature of the offence and is not consistent with the alternative of the two years imprisonment term imposed. Compare S v Mlazi & Another 1992 (2) SACR 673 (W).

Because of the nature of the assault and the personal circumstances of the accused:

The conviction is confirmed and the sentence is set aside and the following is substituted therefor:

“R1000-00 or one (1) year imprisonment half of which is suspended for a period of three (3) years on condition accused is not convicted of assault with intent to do grievous bodily harm or assault common committed during the period of suspension.”

M M LEEUW

JUDGE OF THE HIGH COURT I agree.

B E NKABINDE

JUDGE OF THE HIGH COURT 15 NOVEMBER 2001

“R1000-00 or one (1) year imprisonment half of which is suspended for a period of three (3) years on condition accused is not convicted of assault with intent to do grievous bodily harm or assault common committed during the period of suspension.”

M M LEEUW

JUDGE OF THE HIGH COURT

I agree.

B E NKABINDE

15 NOVEMBER 2001