R v Conrad and Others

• Jurisdiction: South Africa
• Citation: 1967 (1) SA 88 (RA)

R v Conrad and Others
1967 (1) SA 88 (RA)

1967 (1) SA p88

Citation	1967 (1) SA 88 (RA)
Court	Rhodesia, Appellate Division
Judge	Quénet JP, Macdonald JA and Fieldsend AJA
Heard	September 28, 1966
Judgment	October 18, 1966

Flynote : Sleutelwoorde

Criminal procedure — Sentence — Assessment of — Limits to be G observed — Verdict — Allegations in alternative charge embracing counts forming integral part of main charge — Not competent to return verdict of guilty on main and alternative charge — Court on appeal not competent to interfere — Chap. 15 (R), sec. 56 (2) — Juvenile offender — Sentence — Chap. 31 (R), sec. 374 (4) — Policy of.

Headnote : Kopnota

H In assessing sentence the limits which must be observed are always that the sentence must be in respect of the crime of which the accused has been convicted and not in respect of some other or more serious offence, that the collateral matter, to which regard is had, must be proximate to the commission of the offence, and there must be no risk of the accused being prosecuted in another trial in respect of the matters which have been taken into account in assessing sentence.

The policy underlying section 374 (1) of the Criminal Procedure and Evidence Act, Chapter 31, is to ensure that the juvenile will not serve a period of imprisonment where a moderate correction is considered to be the appropriate punishment.

1967 (1) SA p89

The appellants had been charged on the main count with public violence. There was an alternative charge embracing two counts, assault on one of the persons alleged to have been assaulted in the main charge and malicious injury to property of one of the persons named in the main charge. The appellants had been found not guilty on the main charge. The first, third and sixth accused had been found guilty on the first count in the alternative charge and all the accused guilty on the second count A in the alternative charge. The magistrate in his reasons for judgment stated that he would have convicted all on the main charge, limiting the conviction in respect of certain of the appellants to certain of the incidents only. But he had felt he was in law precluded from doing that and at the same time did not feel it was fair to convict some on the main charge, a serious charge, and others not. In an appeal,

Held, as the assault and malicious injury to property counts were B integral parts of the main charge, that a verdict on the main charge and on either or both the counts in the alternative charge would have been irregular.

Held, further, regard being had to the provisions of section 56 (2) of the Magistrate's Court Act, Chapter 15, that the magistrate had exercised his discretion as to verdict in a manner which was proper in the circumstances.

Held, further, in regard to the sentences imposed, as the matters were sufficiently proximate to the commission of the offence, that proper sentences had been imposed. C

Case Information

Appeal from convictions in a magistrate's court. Facts not material to this report have been omitted.

F. G. Collins, for the appellants, at the request of the Court.

T. P. Hathorn, for the Crown.

Cur. adv. vult. D

Postea (October 18th).

Judgment

E Quènet, J.P.:

Seven persons, Joseph Conrad, Emerstone, Pio, Stephen Tinarwo, Herbert, Isaac Katsweya and Fannie, appeared before the magistrate on various charges. The main charge alleged the accused were guilty of the crime of public violence in that on 5th March, 1966, at or near Salisbury, they

'did then and there make a riot and affray, and did march in a body to the house of Peter Mabgwe, a Native there residing, and did assault him F and throw sticks and bricks and other instruments at and towards him and his property, and did after this march in a body to the house of Phillip Kajokoto, a Native there residing, and did then and there assault Eric Kajokoto, a Native there residing, and did interfere with the rights of the people there being by creating a disturbance and shouting slogans with intent to cause alarm and despondency'.

As an alternative to this charge two offences, each forming the subject G of a separate count, were alleged. The first charged an assault on Eric Kajokoto, the second the crime of maliciously injuring the property of Peter Mabgwe. These two offences were said to have been committed on 5th March. The magistrate found all the accused not guilty on the main charge. He returned a verdict of guilty on count 1 of the alternative H charge in respect of the first, the third and the sixth accused. He sentenced the first accused to one month's imprisonment with hard labour, the third to a fine of £5 or, in default of payment, one month's imprisonment with hard labour and the sixth accused to two months' imprisonment with hard labour. He found all the accused guilty on count 2 of the alternative charge. He sentenced the first accused to ten months' imprisonment with hard labour, the third to a moderate correction of six cuts and three months' imprisonment with hard labour suspended on conditions. The sixth accused was sentenced to six

1967 (1) SA p90

Quènet JP

...