S v Mbhele
[2007] JOL 20716 (N)
(Butterworths) / Not reported in any LexisNexis Butterworths printed series.
Case No: / R 1421 / 07
Judgment Date(s): / 25 / 09 / 2007
Hearing Date(s): / None Indicated
Marked as: / Reportable
Country: / South Africa
Jurisdiction: / High Court
Division: / Natal Provincial
Judge: / Koen J
Bench: / Koen, Van der Reyden JJ
Parties: / The State (A); Siyabulela Mbhele (Acc)
Appearance: / None Indicated
Categories: / Review – Criminal – Procedural – Public
Function: / Confirms Legal Principle
Key Words
Criminal procedure – Assault with intent – Sentence – Review
Mini Summary
Convicted of assault with intent to do grievous bodily harm, the accused was sentenced to a fine of R5 000, or 12 months' imprisonment.
Held that the record of proceedings showed that the procedure adopted by the court after conviction was not in accordance with justice. The sentence was reviewed and set aside, and the case remitted to the magistrate for reconsideration of the issue of sentence.
KOEN J
[1]The accused was convicted in the Magistrate's Court for the district of Umzimkulu of assault with intent to do grievous bodily harm and sentenced to pay a fine of R5000, or in default of payment to undergo 12 months' imprisonment. According to the review coversheet the fine was not paid. It therefore appears that the accused has commenced serving his sentence of imprisonment.
[2]Following upon his conviction, the accused elected to address the court in mitigation of sentence in terms of section 274(2) of the Criminal Procedure Act 51 of 1977 and to call his brother, Kizaningi Mbhele, and his mother, Tholakele Hlabathi, as witnesses.
[3]In respect of his brother, Kizaningi Mbhele, the learned Magistrate dominated the questioning and repeatedly enquired of the witness what he would like the court to sentence the accused. Not surprisingly, this elicited responses of confusion and plaintive appeals for a fine. The accused was not given the opportunity of putting his own questions to his witness and eliciting such evidence as he might wish to have elicited, and which might be favourable to him regarding sentence. The only limited "opportunity" afforded to the accused, took the form of an enquiry by the learned Magistrate as to whether he (the accused) confirmed the testimony of his witness. When that was met with a negative response, it was enquired what part of the statement the accused did not agree with. The accused was then allowed to have it confirmed by the witness that he wanted a suspended sentence and also to confirm that he was suffering from asthma. The accused then stated that he was "satisfied".
[4]The "evidence" of Tholakele Hlabathi also started off with an invitation by the magistrate to the witness to indicate whether she would "like this Court to send the accused to jail without a fine, or with a fine, or a suspended sentence". That was followed by three further questions and the witness was then excused. No opportunity was given to the accused to put any questions to his witness, nor even to "confirm" the evidence.
[5]A mere invitation as to whether the accused confirmed the evidence of his brother Kizaningi Mbhele, is, in my view, improper and falls far short of the rights an accused enjoys to adduce evidence on sentence in terms of the provisions of section 274 of the Criminal Procedure Act. Denying the accused the opportunity to elicit from his witness by questioning (with assistance where necessary) whatever evidence the accused believes his witness could contribute on sentence, is a serious irregularity. Not only does it offend against the spirit and ambit of section 274 of the Criminal Procedure Act, but it also seriously infringes and defeats the accused's right to a constitutionally fair trial in terms of section 35(3) of the Constitution of the Republic of South Africa, 1996.
[6]In addition, the line of questioning adopted by the court is tantamount to an abdication by the court of its duty and responsibility to determine an appropriate sentence. It is undesirable, if not simply improper, to enquire of lay witnesses what they would like the court to impose by way of a sentence. Any answer would amount to irrelevant and inadmissible opinion evidence. In addition it is cruel and degrading to the witnesses to tax them with such an issue where they are related to the accused and obviously wish for the lightest possible sentence.
[7]In my view, the procedure adopted after the conviction of the accused was not in accordance with justice.
[8]The sentence is therefore reviewed and set aside. The matter is remitted to the learned Magistrate to deal with the aspect of sentence appropriately and with due regard to the accused's rights. Needless to say, the period of imprisonment which the accused has served is a consideration to which the learned Magistrate might attach such weight as it may deserve, in sentencing the accused afresh.
(Van der Reyden J concurred in the judgment of KoenJ).