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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.:18/05

In the matter between:

STEPHEN MOKALE

And

THE STATE

MMABATHO

JUDGMENT

MONAMA AJ:

FACTUAL BACKGROUND

[1] The accused was convicted by the Magistrate Mr Kleynhans in Madikwe Magistrate’s Court on the charge of assault with intent to do grievous bodily harm on 14 October 2004 and sentenced to an effective jail term of two (2) years. The accused was unrepresented and his rights regarding appeal and review were explained.

[2] On 18 October 2004 the accused’s legal representative approached the said court on notice for leave to appeal against the sentence only. The notice of appeal was filed of record on 19 October 2004. The application for leave to appeal was argued on 28 October 2004 and the accused was unsuccessful. The reasons for leave to appeal are spelt out in the notice of appeal.

[3] On 8 November 2004 the Registrar of this Court received the court record for the review purposes. On 9 November 2004, my brother Landman J raised a query regarding suspension of a portion of the sentence because of the age of the accused as well as the fact that the accused had no previous convictions. To this query the Learned Magistrate replied comprehensively with cogent reasons ON 15 November 2004. He was open to concede that the two (2) years imprisonment is a stiff punishment but motivated why same is appropriate in the circumstances. Accordingly the proceedings were considered to have been in accordance with justice. After the consideration of the record, I am satisfied as my Brother Landman J held, that the proceedings were in accordance with justice.

[4] The Learned Magistrate found that the assault was committed in a public place which is regularly frequented by members of the public. The assault was both severe and brutal, which was carried out with a dangerous weapon. The complainant sustained permanent scars on his body and the accused demonstrated no remorse. The Learned Magistrate indicated the high prevalence of this crime in the area.

[5] After the refusal of application for leave to appeal the accused did nothing to approach this Court for the relief. The accused states in his affidavit attached to his petition that:

“. . . my attorney of record realising that the matter would be reviewable used his discretion to await the outcome of the review”.

The accused states that he could not petition this Court because it would be unwise to use two fora simultaneously and it was only on or during the 13^th December 2004 that the accused launched his petition.

[6] Before I deal with the merit of the petition is it necessary to address the question of condonation of the late filing of the petition. The Criminal Procedure Act, 51 of 1977 as amended, prescribes the time limits for the filing of petitions, namely that:

“Any petition . . . must be made within 21 days after the application was refused’.

The Act makes provision for the extension of that period but before an extension can be granted good cause must be shown. In casu the petition was lodge with the Court on 20 December 2004, well outside the prescribed time limits. The explanation for the delay is because the accused was still awaiting the outcome of the review process. Does the “awaiting of the outcome of the review” constitute a good cause? In my view the said reason is not convincing because the automatic review and appeal procedures serve different purposes.

[7] I am of the view, that the petitioner and or his legal representative’s attitude, does not constitute a good cause for the breaking or undermining of the rules. In my opinion the accused took a gamble. In their view, that the petition should await the results of the review was not appropriate. However, it would seem that the choice of the strategy was the invention of the legal representative. Even if the misjudgement is the fault of the attorney, the delay is not condonable. However, in the interest of justice, I am inclined to grant the condonation as was done in Tshivhase Royal Council and Another v Tshivhase and Others [1992] ZASCA 185; 1992 (4) SA 852 (A) at 861-862. The condonation, which is hereby granted, should not be construed as an encouragement of the disregards of the rules.

[8] The accused approaches this Court on appeal against the sentence only. My brother Landman J found, that the proceedings were in accordance with justice and I agree with the said findings. The Learned Magistrate has, in my view, followed the guidelines stipulated in the decisions of the Courts properly. In S v Seegler 1970 (2) SA 506 (A) at 511 E-H the prevalence guidelines were applied and the court held:

“In passing sentence the prevalence of the type of offence of which the appellant has been convicted should be taken into account”.

Insofar as the element of remorse is concerned, the court held that:

“Remorse, as an indication that the offence will not be committed again, is obviously an important consideration . . . But, in order to be valid considerations, the penitence must be sincere. . .”.

In casu the element has been lacking. There is paucity of evidence of remorse. On the contrary the petitioner insisted his innocence.

[9] In passing sentence, the courts always look at the crimes, criminal, and the interest of the community. In addition thereto the sentence must be “blended” with mercy as the court held in S v Rabie 1975 SA 855 (A). I am in full agreement with Holmes JA when he said the approach of mercy has:

“Nothing in common with maudlin sympathy for the for the accused . . . while recognising that a fair punishment may sometimes have to be robust, mercy is a balanced and humane quality of thought which limpers one’s approach when considering the basic factors of letting the punishment fit the criminal as well as the crime and be fair to the society” at page 861 C-E.

But the robust sentence, which is appropriate, should not be reduced for mercy’s sake. In assessing the sentence the Learned Magistrate had due regard to the accused personal circumstances. He investigated the accused’s family relationship, his employment. The High Courts is always hesitant to overrule the decision of a lower court, except when it is satisfied that the lower court did not exercise a proper judicial discretion as it was held in Beecham Group Ltd vs B M Group (Pty) Ltd 1977 (1) SA 50 (T) at 58 G-H.

[10] I have, after serious consideration, come to the conclusion that the sentence by the Learned Magistrate to be appropriate, for the reasons he gave. He exercised his discretion judicially and accordingly the petition is refused.

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R E MONAMA

ACTING JUDGE OF THE HIGH COURT

DATED :

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