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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 030/2004

PARTIES: The State

and

Buyisile Mhlnagentsomi Nondwango

REFERENCE NUMBERS -

• Registrar: 20040825

• Magistrate: 218/2004

• Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 29 July 2004

JUDGE(S): Jennett J and Mouton AJ

CASE INFORMATION -

• Nature of proceedings : Criminal Review

• Topic: Sentence – crimen iniuria and assault

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

REVIEW CASE NO: 20040825

CASE NO: 218/2004

DATE DELIVERED:

In the matter between

THE STATE

vs

BUYISILE MHLANGENTSOMI NONDWANGO

REVIEW JUDGMENT

MOUTON AJ:

This is a review judgment. The accused was charged in the magistrate’s court at Stutterheim with two counts of crimen injuria and two counts of assault. He pleaded not guilty and conducted his own defence, but was found guilty on all four counts as charged and sentenced to an effective term of imprisonment of three years and nine months.

When the matter came on automatic review earlier this month, one of my Brothers inter alia queried the appropriateness of the effective sentence of imprisonment. The magistrate has now replied, suggesting that the effective sentence be interfered with if it is deemed in the interests of justice to do so.

Although there are small differences between the facts set out in the charge sheet and the acceptable evidence, I am satisfied that the accused was correctly convicted on the four counts. The four counts involved three separate incidents on three different days and involved the same complainant, a woman who was described as “elderly” by the magistrate, although her date of birth or exact age was not established in evidence. On the first occasion, which took place on 3 March 2004, the accused insulted the complainant by swearing at her, inter alia referring to her private parts. The second incident (involving counts 2 and 3) occurred on 9 March 2004, when the accused again insulted the complainant, referring to her private parts in the most vulgar language and verbally threatened to kill her, although no weapon was displayed. The last incident (the subject matter of the fourth count) took place the following day, 10 March 2004, when the accused had a knife in his hand and threatened to kill the complainant, although he did not enter her house in order to carry out his threat.

According to the complainant, she did not know the accused and all these incidents occurred without any rhyme or reason. The accused, on the other hand, alleged that he was selling dagga on behalf of the complainant and that the reason for the bad blood between them was that she had accused him of using her dagga money for his own purposes. Although I have some misgivings about the true background to these unsavoury incidents, I am of the view that the magistrate was correct in rejecting the accused’s version (which constituted a complete denial) and accepting the evidence of the three state witnesses who to a greater or lesser extent corroborated each other.

The magistrate did not say much regarding the applicable principles relating to the imposition of an appropriate sentence (giving rise to one of the other queries of the reviewing Judge), and sentenced the accused to nine months’ imprisonment on count 1, two years’ imprisonment of counts 2 and 3 which were taken together for purposes of sentence and twelve months’ imprisonment on count 4; an effective sentence of three years and nine months.

The accused, a man of some 41 years of age, has an impressive list of relevant previous convictions. In 1984 he was sentenced to 6 months’ imprisonment for assault with intent to do grievous bodily harm; in 1985 he was sentenced to a fine of R100 or 100 days imprisonment for common assault; in the same year he was sentenced to 5 months’ imprisonment for assault with intent to do grievous bodily harm; in 1993 he was sentenced to 8 years’ imprisonment for murder and in 2000 he was sentenced to 6 months’ imprisonment for yet a further assault with intent to do grievous bodily harm. It is clear that the accused has a disturbing inclination towards violent behaviour and although he should not now be sentenced for his misdemeanours of the past, the fact of a long list of previous convictions involving violence, is clearly relevant to the imposition of an appropriate and fair sentence for the crimes of which he has now been convicted.

Undoubtedly, the accused has made himself guilty of serious offences. Although he has not physically injured the complainant, the threat to kill her on two occasions (the second occasion whilst being armed with a knife), particularly against an elderly female, must be regarded as very serious. The vulgar and demeaning language used vis-à-vis the complainant on different occasions must also be viewed in a very serious light.

On reflection, however, the effective sentence imposed by the magistrate seems to me to be startlingly inappropriate and too severe. There was clearly more to the relationship between the complainant and the accused than met the eye and one cannot lose sight of the fact that, although technically speaking four different offences were committed, the pattern of behaviour of the accused was the same and seemingly involved the same bone of contention (whatever it was) between them. The magistrate should also have taken into account that the accused has been incarcerated since mid-March 2004.

In my view, justice will be done if the accused is ordered to serve an effective sentence of 9 months’ imprisonment. However, in the light of his relevant previous convictions and his tendency to violence, I am of the view that an additional period of imprisonment should be imposed, suspended on appropriate conditions.

In the result the sentences imposed by the magistrate are set aside and substituted by the following:

Count 1: 6 months’ imprisonment of which three months are suspended for three years on condition that the accused is not convicted of the crime of crimen injuria committed during the period of suspension for which is imposed imprisonment without the option of a fine;

Counts 2 and 3: these counts are taken together for purposes of sentence and a sentence of 15 months’ imprisonment is imposed of which 9 months are suspended for three years on condition that the accused is not convicted of the crimes of either crimen injuria or assault committed during the period of suspension and for which imprisonment without the option of fine is imposed;

Count 4: twelve months’ imprisonment of which 9 months are suspended for three years on condition that the accused is not convicted of the crime of assault committed during the period of suspension for which imprisonment without the option of a fine is imposed.

These sentences are antedated to the date on which the magistrate sentenced the accused, viz. 8 May 2004.

It is ordered that the sentence imposed on count 1 is to be served concurrently with the sentences imposed on counts 2, 3 and 4. The effective period of imprisonment is consequently 9 months.

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C.J. MOUTON

ACTING JUDGE OF THE HIGH COURT

I agree,

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M.P. JENNETT

JUDGE OF THE HIGH COURT

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