S v Voorby (41/01) [2001] ZANWHC 31 (15 June 2001)

CA NO : 41/01

IN THE

HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

THE

STATE

vs

EDWARD

VOORBY

R E V I

E W J U D G M E N T

LEEUW J:

The accused was convicted of one count of Assault Common and two counts of Pointing a fire-arm.

It is alleged, in counts 1 and 2 that he assaulted and pointed a fire-arm at Jefrey Motshegwa respectively and in count 3, of pointing a fire-arm at one Petrus Dini.

The sentence reads as follows :

“Count 1: Fined R300-00 or 30 days imprisonment.

Count 2 and 3 : Accused fined R4000-00 or 8 months imprisonment of which R2000-00 or 4 months imprisonment is suspended for 5 years on condition that accused not contravene provisions of section 39 (1) (1) Act 75/69 during period of suspension.”

The conviction in respect of count 3 is in order but the convictions on counts 1 and 2 together with the sentences on all counts are not in order for the reasons stated hereunder. When the complainant, Jefrey Motshegwa, testified, the accused was not given an opportunity to cross-examine him. The Magistrate, in response to my query, stated that it was an oversight on his part and concedes that this is a gross irregularity, and that the proceedings should be set aside. I will concede to the Learned Magistrate’s request because failure to explain the accused’s right of cross-examination and the possible consequences of failure to testify may constitute a gross departure from established rules of procedure so as to lead to a failure of justice. S v Maseko 1993 (2) SACR 579 (A). In this case, fairness would require that the evidence of Jefrey Motshegwa on both counts 1 and 2 be excluded. See Key v Attorney-General, Cape Provincial Division and Another [1996] ZACC 25; 1996 (2) SACR 113 (CC, and that the convictions in respect of those counts be set aside. The Learned Magistrate has passed a globular sentence in respect of counts 2 and 3. The undesirability of passing such a sentence cannot be overemphasized especially if one of the convictions is set aside on appeal or review. The remarks of Corbett JA in S v Immelman 1978 (3) SA 726 (A) at 728 H are apposite:

The conviction in respect of count 3 is in order but the convictions on counts 1 and 2 together with the sentences on all counts are not in order for the reasons stated hereunder.

When the complainant, Jefrey Motshegwa, testified, the accused was not given an opportunity to cross-examine him. The Magistrate, in response to my query, stated that it was an oversight on his part and concedes that this is a gross irregularity, and that the proceedings should be set aside.

I will concede to the Learned Magistrate’s request because failure to explain the accused’s right of cross-examination and the possible consequences of failure to testify may constitute a gross departure from established rules of procedure so as to lead to a failure of justice. S v Maseko 1993 (2) SACR 579 (A).

In this case, fairness would require that the evidence of Jefrey Motshegwa on both counts 1 and 2 be excluded. See Key v Attorney-General, Cape Provincial Division and Another [1996] ZACC 25; 1996 (2) SACR 113 (CC, and that the convictions in respect of those counts be set aside.

The Learned Magistrate has passed a globular sentence in respect of counts 2 and 3. The undesirability of passing such a sentence cannot be overemphasized especially if one of the convictions is set aside on appeal or review. The remarks of Corbett JA in S v Immelman 1978 (3) SA 726 (A) at 728 H are apposite:

“In my view, difficulty can also be caused on appeal by the imposition of a globular sentence in respect of dissimilar offences of disparate gravity. The problem that may then confront the Court of Appeal is to determine how the Trial Court assessed the seriousness of each offence and what moved it to impose the sentence which it did. The globular sentence tends to obscure this.” The sentence imposed for counts 2 and 3 in itself is too severe and induces a sense of shock. Because of the irregularities committed and the fact that the convictions on counts 1 and 2 are to be set aside, I will have to interfere with the sentences imposed. In the result, the following order is made : “The convictions on counts 1 and 2 are set aside, and the conviction on count 3 is confirmed. The sentences on counts 1, 2 and 3 are set aside and the following sentence is substituted therefor in respect of count 3 : R2000-00 or 12 months imprisonment, of which R1000-00 or 6 months imprisonment is suspended for 3 years on condition accused is not convicted of contravening section 39 (1) (i) r.w. sections 1 and 39 (2) of Act 75 of 1969 committed during the period of suspension.”

M

M LEEUW

JUDGE

OF THE HIGH COURT I agree.

“In my view, difficulty can also be caused on appeal by the imposition of a globular sentence in respect of dissimilar offences of disparate gravity. The problem that may then confront the Court of Appeal is to determine how the Trial Court assessed the seriousness of each offence and what moved it to impose the sentence which it did. The globular sentence tends to obscure this.”

The sentence imposed for counts 2 and 3 in itself is too severe and induces a sense of shock. Because of the irregularities committed and the fact that the convictions on counts 1 and 2 are to be set aside, I will have to interfere with the sentences imposed. In the result, the following order is made :

“The convictions on counts 1 and 2 are set aside, and the conviction on count 3 is confirmed.

The sentences on counts 1, 2 and 3 are set aside and the following sentence is substituted therefor in respect of count 3 : R2000-00 or 12 months imprisonment, of which R1000-00 or 6 months imprisonment is suspended for 3 years on condition accused is not convicted of contravening section 39 (1) (i) r.w. sections 1 and 39 (2) of Act 75 of 1969 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 JUNE 2001

B

E NKABINDE

15 JUNE 2001