S v Velizulu (A842/09) [2009] ZAGPPHC 323 (25 September 2009)

S v Velizulu (A842/09) [2009] ZAGPPHC 323 (25 September 2009)

The reviewing court found that the trial magistrate erred in convicting the accused of assault with intent to do grievous bodily harm, as the record did not contain sufficient evidence of intent or serious injury. The facts supported a conviction of common assault only. The court determined that referring the matter back for reconsideration of sentence would be unnecessarily burdensome for the accused, given the available record. Accordingly, the conviction was substituted with common assault, and a new, lesser sentence was imposed, wholly suspended on condition of good behaviour.

Citation
[2009] ZAGPPHC 323
Parties
Applicant: The State; Respondent: Xolam Velizulu
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 September 2009
Case Number
A842/09
Procedural Posture
Review Application / Automatic Review of Conviction and Sentence
Outcome
Conviction for assault with intent to do grievous bodily harm set aside and substituted with common assault; sentence reduced and wholly suspended.
Judges
Webster, Potterill
Legal Topics
Assault With Intent to Do Grievous Bodily Harm, Common Assault, Sentencing Guidelines, Automatic Review
Criminal Law Assault With Intent to Do Grievous Bodily Harm Common Assault Sentencing Guidelines Automatic Review

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Applicant

Xolam Velizulu

Respondent

Procedural Posture

Review Application / Automatic Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the conviction for assault with intent to do grievous bodily harm was appropriate given the facts presented.
  2. 2 Whether the sentence imposed by the trial court was suitable in light of the correct conviction.

Ratio Decidendi

The reviewing court found that the trial magistrate erred in convicting the accused of assault with intent to do grievous bodily harm, as the record did not contain sufficient evidence of intent or serious injury. The facts supported a conviction of common assault only. The court determined that referring the matter back for reconsideration of sentence would be unnecessarily burdensome for the accused, given the available record. Accordingly, the conviction was substituted with common assault, and a new, lesser sentence was imposed, wholly suspended on condition of good behaviour.

Court Disposition

Conviction for assault with intent to do grievous bodily harm set aside and substituted with common assault; sentence reduced and wholly suspended.

Orders

  • The conviction for assault with intent to do grievous bodily harm is set aside and substituted with a conviction for common assault.
  • The original sentence is set aside and replaced with a fine of R500 or three months' imprisonment, wholly suspended for two years on condition that the accused is not convicted of assault or any violent offence during the period of suspension.