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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE - GRAHAMSTOWN)

CASE NO. CA&R143/10

REVIEW NO: 20100176

DATE DELIVERED:

In the matter between

THE STATE

and

NOMPUMELELO LONDE

JUDGMENT

ROBERSON J

[1] The accused, a twenty two year old female first offender, was convicted in the Magistrate’s Court for the district of Aliwal North, of assault with intent to do grievous bodily harm, and sentenced to thirty six months’ imprisonment. The matter came before me on automatic review, the accused not having been legally represented at the trial.

[2] The assault was a serious one, the complainant having been stabbed eight times with a bottle neck. There were however mitigating factors, namely the youth of the accused, her clean record, the fact that she was sorry for the assault and voluntarily went to the police to report the assault. The outstanding feature of the accused’s personal circumstances, in my view, is the fact that at the time of sentence she was seven months pregnant and had two children aged five and seven years. The accused testified that she and her children lived with her mother, the children’s grandmother. In his judgment on sentence, the magistrate had regard to the fact that the accused was pregnant and had two children, but appeared not to consider who was to care for the children if the accused was in prison. Even if the children are with their grandmother, there was no investigation into the quality of the care provided by the grandmother, and in essence, there was no investigation into the welfare of the children if the accused was in prison. Having regard to the duties of a court in sentencing a primary caregiver of children as set out in S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC), it was essential in this matter to obtain a pre-sentence report and a correctional supervision report, before an appropriate sentence could be considered. A sentence of correctional supervision may well be an appropriate sentence in all the circumstances, taking into account the interests of the children (including the soon to be born child) and the other mitigating factors mentioned above.

[3] In view of the fact that the welfare of the children is vital to a consideration of sentence in this case, and that at this stage their circumstances are unknown, I am of the view that the sentence should be reviewed and set aside without first obtaining the magistrate’s reasons, to avoid any possible prejudice to the children.

Order

[4] The conviction is confirmed. The sentence of thirty six months imprisonment is set aside and the matter is remitted to the magistrate to obtain a pre-sentence report and a correctional supervision report, and thereafter to consider sentence afresh, paying particular regard to the judgment in S v M (supra).

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J.M. ROBERSON

JUDGE OF THE HIGH COURT

KROON J

I agree.

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F. KROON

JUDGE OF THE HIGH COURT

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