S v Thupuli (A206/2020) [2021] ZAFSHC 67 (25 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN n

Review no: R 10/2021

Magistrate court no: A 206/2020

In the matter between:

THE STATE

and

ZACHARIA THUPULI

CORAM:

MOLITSOANE et, MAJOSI, AJ

JUDGMENT BY: MAJOSI, AJ

DELIVERED ON: 25 MARCH 2021

[1] This matter serves as an automatic review in terms of section 302 of the Criminal Procedure Act 51 of 1977 (the Act) as amended. The unrepresented accused was charged with assault with intent to do grievous bodily harm in the Magistrate Court, Hennenman. He plead guilty to the offence but after questioning ensued in terms of s 112 (1)(b), he did not admit the intention to cause grievous bodily harm and a plea of not guilty was entered in terms of s 113 of the Act.

[2] The complainant testified and on the strength of her evidence, in particular, the extent of her injuries, the accused was found guilty as charged. He was sentenced to three years’ imprisonment of which one year imprisonment was suspended for a period of five years on condition the accused is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension. In terms of s 103(1) of the Firearm’s Control Act 60 of 2000, no order was made, this means he was found unfit to possess a firearm.

[3] It appeared from the transcribed record that rights to legal representation were not explained on the date of the trial and that accused’s trial rights were not sufficiently explained at appropriate stages of the trial as envisioned in S v Ramulifho 2013 (1) SACR 388 (SCA). I caused a query to be sent to the magistrate to address these aspects including his reasons for imposing the particular sentence.

[4] The magistrate in his response to my query, conceded to both these aspects. Firstly, that on the date of trial he did not explain the accused rights to legal representation again as it had been explained to the accused at his previous two appearances in court. Secondly, that his explanation of trial rights to the accused was short in nature and did not provide sufficient particularity.[1] He also provided further reasons as to why he imposed this particular sentence for which I am grateful.

[5] Section 35(3) of the Constitution Act 108 of 1996 guarantees an accused’s right to a fair trial including the right to have a legal practitioner to be assigned to his case at state expense if a substantial injustice would otherwise result. In S v Ramulifho supra, Southwood AJA, said the following at paragraph 5:

“…He(magistrate) was obliged to inform the appellant of his basic procedural rights — the right to cross-examine, the right to testify, the right to call witnesses, the right to address the court both on the merits and in respect of sentence — and in comprehensible language to explain to him the purpose and significance of his rights.” (my emphasis)

[6] The magistrate, as alluded to earlier herein above conceded that he did not explain the accused rights to legal representation on the trial date. On the accused first appearance and second appearance on the 4 November 2020, it was noted by the magistrate that he appraised of the accused of his rights to legal representation and he still elected to conduct his own defence. It was also noted at the latter appearance that he was to be provided with a copy of the contents of the docket.

[7] On the trial date of the 7 November 2020, the magistrate enquired from the accused if indeed he received copies of the contents of the docket before the trial commenced. Although this would have been the opportune time to canvass the issue of legal representation with the accused again, it was not done. This oversight ought not to be repeated in future.

[8] In S v May 2005 (2) SACR 331 (SCA) the following was stated by Lewis JA at paragraph 8:

“Whether or not prejudice has resulted from the lack of legal representation is really a question that can be determined only by having regard to the whole trial, and the way in which it was conducted by the judicial officer; and the ability, as shown during the course of the trial, of the accused to represent himself adequately; and to whether the evidence adduced has led justifiably to the conviction and sentence.”

More importantly, did this result in an unfair trial and a failure of justice as raised in S v Rudman 1992 (1) SA 343 (A)? I now turn to the evidence presented at the trial.

[9] The transcribed record reveals that the accused was questioned in terms of s 112(1)(b) of the Act after his plea of guilty and admitted all the elements of the offence. He, however, contended that he assaulted the complainant with open hands and clenched fists only (assault common). He denied that it was done with intent to do grievous body harm as he did not kick the complainant as alleged in the annexure to the charge sheet. A plea of not guilty was thus noted.

[10] The prosecution led evidence of the complainant on this aspect and she testified to the effect that she was assaulted by the accused, her former boyfriend, over a distance of 40 metres with open hands, clenched fists. When she kept falling to the ground due to the assault, the accused kicked her, picked her up and continued assaulting her until she lost consciousness. She regained consciousness after being doused with cold water by the accused’s relatives. She was then able to get up and find her way home.

[11] She felt pain all over her body and her face. The injuries to her face (cuts, black and blue bruising and swelling) were unsightly, one could barely observe her facial features as evidenced in a photograph taken of her just after the assault (Exhibit A). Her own parents took her to a doctor. The pain experienced by her was so severe that she was not given tablets to drink but an injection to ease the pain. A salve was prescribed for her bruises. The injuries on her face were still visible to the court during her testimony on the 11 November 2020 and were observed and noted [2] despite the date of the incident being, 4 October 2020. In the absence of a medical report, this undoubtedly confirms that the

assault on her person was not only grievous but also vicious.

[12] The accused was informed in a brief manner that he may ask her (complainant) questions on aspects of her evidence that he does not agree with. [3] He did not dispute the extent of the complainant’s injuries or that he kicked her. Instead, he stated that he was angry as the complainant’s current boyfriend had stabbed him with a knife earlier that day. The magistrate found the accused guilty as charged as the evidence presented pertaining to the extent of the injuries was not only credible and reliable, but it was corroborated by Exhibit A.

[13] The magistrate, albeit briefly informed the accused of his trial rights at all relevant stages of the trial. I cannot find that the lack of legal representation prejudiced him in any manner. It must be noted however, that this did not extend to sentencing. The accused was only informed that he may address the court for sentence and he did exactly that. He was not made aware that he may testify in that regard or even call witnesses. This is undoubtedly undesirable and may bring into question if this failure resulted in vitiating the accused right to a fair trial.

[13] The prosecution requested the court to roll the matter to the next day to obtain a correctional supervision report. The report is not attached to the proceedings before me although it was marked Exhibit B but was read out by the Correctional Officer in court wherein she recommended 36 months’ correctional supervision in terms of s 276(1) (h) of the Act. This recommendation was solely based on the accused personal circumstances and had no regard to the victim or the actual nature of the assault as the said information was not available to her in the one day she had to compile the report.

[14] This report elaborated on the information provided by the accused in mitigation of sentence. That he was a first offender, 32 years of age, the father of two children, a breadwinner with several dependants including his parents, children and siblings. At the time of sentencing, he had just commenced employment at a local mine with an expected salary of R 3000.00.per month.

[15] In my view, although the accused rights pertaining to the sentence were not adequately explained, the accused himself did not suffer prejudice as he put relevant mitigation factors before court. The correctional officer’s report also favourably expanded upon on his personal circumstances and recommended correctional supervision, as suitable. The record as a whole also did not unearth irregularities that would cause me to interfere with the conviction and it is thus viewed to be in order despite the shortcomings in the explanation given to the accused.

[16] It is trite that sentencing is the prerogative of the sentencing court.[4] Traditional factors such as the accused personal circumstances, the nature and the seriousness of the offence and the interests of community ought to be considered without over emphasizing one above the other. The purpose of sentence is not only punishment but also deterrence, prevention, rehabilitation and retribution.

[17] The numerous aggravating factors such as the nature and seriousness of the offence, the viciousness of the attack on the complainant over a distance of 40 metres, the nature and extent of her injuries outweigh the mitigating factors. The background facts show that the accused is the former partner who perpetrated this offence with no regard to the bodily integrity of the complainant and unleashed his anger on the complainant without restraint.

[18] Gender based violence, is rampant in the Republic of South Africa. Sentences imposed for offences of this nature must not only take into account community interests and that of the victim but also that of the offender. In my view, imprisonment is warranted in these specific circumstances but ought to have been tempered with a level of mercy taking into account the accused personal circumstances and the fact that he is a first offender where the possibility of rehabilitation is still high. A sentence of 24 months’ imprisonment of which 12 months is suspended for a period of 5 years’ with conditions is deemed appropriate in these specific circumstances.

ORDER

1. The conviction is confirmed.

2. The sentence is set aside and replaced with the following:

The accused is sentenced to 24 months’ imprisonment of which 12 months’ imprisonment is suspended for a period of 5 years on condition the accused is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension.

3. The accused is unfit to possess a firearm in terms of s 103 (1) of the Firearms’ Control Act 60 of 2000.

__________________

O.R. MAJOSI, AJ

I concur

P.E MOLITSOANE, J

[1] Magistrate: Henneman letter dated 8th of March 2021, para 3.

[2] Transcribed record P. 9 and 10.

[3] Ibid, P 14, line 16.

[4] S v Rabie 1975 (4) SA 855 (A) at P. 857.