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CA. 119/05

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

LUCAS MMONNAPULE METSING

REVIEW JUDGMENT

ZWIEGELAAR AJ:

[1] The Accused, who conducted his own defence, was convicted and sentenced in the Magistrates’ Court for the district of Rustenburg held at Rustenburg on a count of assault with intent to do grievous bodily harm.

[2] The following order was made regarding sentence:-

“12 months imprisonment or fine of R3000-00 half of which is suspended for a period of 3 (three) years in which accused is not convicted of assault during the period of suspension”.

[3] On review in pursuance of the provisions of Section 302 (1) (a) of the Criminal Procedure Act, Number 51 of 1977 (“the Act”), the presiding Magistrate was requested to comment amongst others on the following, to wit:

“3. Was it the Magistrate’s intention to direct that the accused should not be again “convicted” within the period of suspension or was it the intention to order that the accused should not again be convicted of an offence committed during the period of suspension?

4. Should the fine not be imposed with imprisonment as the alternative thereto and not the other way round (as the Magistrate has done)?”

[4] The presiding Magistrate’s response reads as follows:-

“3. This is matter of semantics, the intention is the same.

4. The or indicates an alternative herein”

[5] It was held in S v Malgas and Others 1979 (3) SA 178 (A) at 181 that where a condition of suspension is related to prevention of criminal conduct by the accused it should be made clear that the conviction of an offence committed within the period of suspension will break the condition.

[6] It was held in S v Rundwa 1961 (3) SA 545 (O) and S v Rulashe 1970 (2) SA 724 (O) that a sentence of imprisonment or the payment of a fine is not a competent sentence.

[7] A fine is thus imposed with imprisonment as the alternative in the event of non-payment of the fine, and not the other way round.

[8] As an assault may consist in the application of force to the person of another or in the inspiring of a belief in another that force is immediately to be applied to him or her, I am of the view that in the instance of the imposition of a suspended sentence for a conviction of assault with the intention to do grievous bodily harm the condition of suspension has to refer to assault consisting in the application of force to the person of another.

[8] I am further of the view that to prevent the imposition of the suspended sentence as a result of a conviction for a less serious assault such as where the force applied consisted out of a slap with an open hand or a push with the hands that the condition of suspension also has to limit the scope of the assault to one for which imprisonment without the option of a fine is imposed.

S v Loubser 1977 (4) SA 546 (TPD).

[9] The following order is accordingly made:-

1. The conviction is confirmed.

2. The order made by the presiding Magistrate regarding sentence is set aside and substituted with the following:-

“The accused is sentenced to a fine of three thousand rand (R3000-00) or twelve (12) months imprisonment half of which is suspended for a period of three (3) years on condition that the Accused is not convicted of an offence involving an assault consisting in the application of force to the person of another for which imprisonment without the option of fine is imposed, which is committed within the period of suspension”.

C.J. ZWIEGELAAR

ACTING JUDGE OF THE HIGH COURT

I agree

M.M. LEEUW

JUDGE OF THE HIGH COURT

DATE OF JUDGMENT: 27 OCTOBER 2005

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