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S v Molefe (20/02) [2002] ZANWHC 12 (3 May 2002)

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CA NO : 20\02


IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)




THE STATE




vs




NORMAN MOLEFE

REVIEW JUDGMENT

LEEUW J:

  1. The accused was convicted on two (2) counts of Assault with intent to do grievous bodily harm and sentenced to “Two years effective imprisonment (Both counts taken cumulatively).” I ordered the immediate release of the accused on the 19th April 2002.


  1. The conviction is in order but the sentence is too excessive because of the following:


2.1 A fight started between the accused and one Julia at a family gathering in the presence of the two complainants in this case.



2.2 Julia and the accused were exchanging blows when Julia hit him with a vase on the forehead, and he sustained an injury.


2.3 In the process, the accused removed a pot of hot water from a stove and poured the water towards Julia’s direction, but missed and instead the water spilled on the 1st complaint’s shoulder and the 2nd complainant’s leg. They both sustained superficial burn wounds;


Both complainants were standing behind Julia when they were burnt with the hot water.


  1. It is clear that the intention was to pour the hot water on Julia and not the two complainants. It is a case of dolus eventualis. This therefore, had a bearing on the moral blameworthiness on the part of the accused.


  1. In response to my query pertaining to the severity of the sentence imposed the Learned Magistrate stated amongst others that the accused did not suffer any serious injuries during the fight and that the complainant’s injuries were of a serious nature. This approach overlooks the circumstances under which the accused and the complainants were injured. The fact that the accused did not manifest a direct intent to injure the complainants reduces his moral blameworthiness in the commission of this offence. Furthermore, Julia was the first to attack and the accused was retaliating.


  1. The Learned Magistrate further submits that “correctional supervision would not be an appropriate sentence as accused’s demeanour throughout the proceedings was contemptuous and unremorseful as against his family members. It is strange because in mitigation of sentence, the accused stated the following:

“I have a kidney problem and I have an appointment at Ga-Rankuwa hospital. I ask for a suspended sentence so that I should repent, and promise that I’ll go out of my parental home.”


  1. This is indicative of one who is sorry about what happened. This was a family feud which caused two people to be mistakenly injured by the careless actions of the accused.


  1. I find that the Learned Magistrate misdirected himself in considering sentence and this therefore entitles me to interfere with the sentence imposed.


  1. The accused is a first offender and with no relevant previous convictions. He is unemployed and he sustained injuries during his fight with Julia. It is appropriate, in reducing his sentence, to take into consideration the period he served in prison.


  1. The accused was sentenced on the 26th March 2001. The proceedings were submitted to the Judge in chambers for Review on the 1st November 2001, being the date they were received by the Registrar. A query with regard to the severity of the sentence was sent to the Magistrate on the 5th November 2001, and received by the Magistrates office on the 26th November 2001. The response dated 5th December 2001, to my query was received by the Registrar on the 7th March 2002. A memorandum wherein the Magistrate was asked to account for the delay, was sent to the Magistrate per fax mail on the 8th March 2002, but there was no response from her.


  1. This state of affairs is unacceptable and has adversely affected the accused person who has been in custody since 26th March 2001. This leads to maladministration and miscarriage of justice. This judgment must be brought to the attention of the Chief Magistrate.


  1. Taking the period during which the accused has been in custody into account, before his release on the 19th April 2002, I accordingly make the following order:


“ (a) Conviction: The conviction of two (2) counts of Assault with intent to do grievous bodily harm is confirmed.


(b) Sentence: The sentence is set aside and the following sentence is substituted therefor both counts taken together for the purpose of sentence.


Thirteen (13) months imprisonment”.






M M LEEUW

JUDGE OF THE HIGH COURT




I agree.







B E NKABINDE

JUDGE OF THE HIGH COURT


03 MAY 2002