South Africa: North West High Court, Mafikeng Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: North West High Court, Mafikeng >> 2005 >> [2005] ZANWHC 5

| Noteup | LawCite

S v Lebelwane (52/04) [2005] ZANWHC 5 (1 January 2005)

Download original files

PDF format

RTF format

CA NO.: 52/04

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)


In the matter between:


THE STATE


AND


ISRAEL LEBELWANE


REVIEW JUDGEMENT


SIBEKO AJ


JUDGEMENT

1. The accused was convicted in the Madikwe District Court of assault with intent to do grievous bodily harm and sentenced to six months imprisonment. From the record of proceedings that emanates from the district court it appears that the accused had stabbed the complainant with a knife on his right knee.


  1. On the evidence adduced, I am satisfied that the conviction for the charge is in accordance with justice.

  1. The issue regarding the sentence imposed is a controversial one. The question to be answered is whether, having regard to the circumstances and the facts of the case, the sentence imposed is in accordance with justice?


  1. I have carefully considered the facts of this case, and have come to the conclusion that considered in isolation, the six months direct imprisonment is not excessive. However, when this sentence is considered in the context of the facts, one is compelled to come to the conclusion that interference with the sentence is justifiable for the following reasons:

4.1 the accused is 31 years old;

4.2 he is a first offender;

4.3 on the undisputed and admitted evidence, the was alcohol involved when the offence was committed; and

4.4 the wound inflicted on the complainant does not appear to have been a serious one, and also its location on the complainant’s body does not warrant the accused to have been dealt with a heavy hand.


  1. Although there is no rule which prescribes that first offenders should be kept out of prison, it seems that the approach of the courts has always been, as far as is possible, to keep first offenders out of prison. The decision in S v Holder 1979 (2) SA 70(A) is instructed in this regard, where Rumpff CJ held as follows:

“ The approach that imprisonment ought not to be lightly imposed, especially if the objects of punishment can be met by another form of punishment, eg a fine with or without suspended imprisonment, is a healthy approach. In the application of this approach the under-emphasising of either the particular person (the accused), or the crime or society must, however, not only be guarded against, but also the over-emphasising of one of these three elements. An appropriate sentence, according to the demands of the time, must be strived for, and an appropriate sentence will always be a sentence which is based on a balanced consideration of the three elements. In the application of this approach a Court of appeal is also still bound by what has repeatedly been said in the Appellate Division, namely that on appeal the sentence will be interfered with only if there was a misdirection or if the sentence is found to be too heavy. A magistrate of Judge imposing sentence must, therefore, be permitted to exercise his discretion within reasonable limits.”


  1. I am satisfied therefore, on the basis of what is set out above that the sentence imposed on the accused should be set aside and substituted with the following:


“The accused is sentence to pay a fine of 6 (six) hundred rand or to 6 (six) months imprisonment.”





L T SIBEKO

ACTING JUDGE OF THE HIGH COURT



I agree




M T R MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT