S v Fulufhelo

• Jurisdiction: South Africa
• Judge: Patel J
• Judgment Date: 28 October 1999
• Docket Number: 201/99
• Court: Venda High Court
• Hearing Date: 28 October 1999
• Citation: 2000 JDR 0091 (V)

Patel AJ:

The, accused was eighteen years old and at school when he was convicted and sentenced to three years' imprisonment. He was charged with the crime of assault with intent to do grievous bodily harm. He pleaded guilty to the charge. He admitted that he struck his sister, Edna Netshivhandane thrice with a spade. She sustained a fracture to her left arm.

2000 JDR 0091 p2

Patel AJ

The conviction is technically correct but the process of determining an appropriate sentence is indeed questionable. By virtue of section 35(3) of the Constitution (Act 108 of 1996) a presiding officer is enjoined to accord every accused a fair trial. The basic right to a fair trial also extends to the final stage of sentencing. (See: S v N 1997 (1) SACR 84 (TkSC) at 87e). It is also incumbent upon a presiding officer, by virtue of section 174(1) of the Criminal Procedure Act of 1977, to ensure fairness in sentencing. It must also be judicious and appropriate. (S v Kekana 1989 (3) SA 513 (T) at 515J-r516A). Without the relevant information it is well-nigh impossible for the presiding officer to make an informed assessment determining an appropriate sentence. The technique of eliciting information particularly from an unrepresented accused is simply not a mechanical exercise. It requires a perceptive understanding and appreciation of the purpose of sentencing. The formalities, rules and principles of procedure necessary for proper sentencing of an accused person must be deployed to ensure fairness. (See: S v N, supra, at 99b-c).

Now, reverting to the matter under review, it appears from the record that the magistrate engaged in a brisk and mechanical approach in eliciting the information from the accused. The entire process proceeded as follows:

2000 JDR 0091 p3

Patel AJ

"ACCUSED HAS NO PREVIOUS CONVICTIONS

Court:	Now is your time to mitigate, that is advancing to the court which factors must the latter consider while passing sentence. You may do this by giving evidence under oath, or you addressing the court from any podium you prefer to be. Take into account that evidence under oath carries more weight than a mere address. What is your election?
Accused:	I can will make an unsworn statement in mitigation.
Court:	Any witness to call?
Accused:	No witness to call.
Court:	Let us hear your mitigatory factors. To assist you, do you work?
Accused:	I'm not employed.
Court:	What do you do?
Accused:	I am a scholar.
Court:	Where?
Accused:	At Tshivhazwaulu Secondary School.
Court:	Standard?
Accused:	Standard 8.
Court:	Can you devise the means to pay fine?
Accused:	No.
Court:	Anything else to add regarding sentence?

Accused...