S v Huzzrah

• Jurisdiction: South Africa
• Judge: Patel, J
• Judgment Date: 14 June 2002
• Docket Number: A620/00
• Hearing Date: 14 June 2002
• Court: Witwatersrand Local Division

Patel J:

[1]

Before the merits of this appeal were argued, the appellant applied for condonation for the late filing of her notice of appeal. Her failure to file the notice was not due to any negligence on her part or her present attorneys of record. There was no objections by the respondent. Accordingly, condonation was granted.

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Patel J

[2]

This is a sad case. It evokes sympathy for both the deceased and the appellant who negligently caused the untimely death of her best friend. In this case, the appellant noted an appeal against both the conviction and sentence but no submissions were advanced regarding the merits of her conviction. The appeal proceeded only on the question of sentence.

[3]

The appellant was convicted of culpable homicide. She was sentenced to 6 years' imprisonment of which 2 years were suspended for 5 years on condition that she was not guilty of any offence involving an assault in respect of which she is sentenced to imprisonment without the option of a fine.

[4]

The sole ground of her appeal against sentence is that the sentence imposed by the trial court is excessive. It placed undue emphasis on the deterrent and retributory aspects of punishment. It was submitted on her behalf that the trial court attached undue weight to the interests of society.

[5]

The court, in exercising its discretion, rejected the probation officer's recommendation that the appellant should be given a wholly suspended sentence. The probation officer was of the view that since the tragic incident the appellant was extremely remorseful for the death of her best friend. It will be a constantly remind her of the tragedy caused by her negligence. It will be on her conscience. She has also been ostracised by the community for her negligent deed that caused her friend's death. The personal circumstances of the appellant do evoke considerable sympathy, especially when she has led an

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Patel J

exemplary life and then falls. (See S v M 1998 (1) SACR 162 (W) at 164c).

[6]

The trial court did not share the probation officer's views and rejected her reasoning for a totally suspended sentence. It was of the view that such a sentence was inappropriate because the appellant's culpability was "violence committed in a violence-riddled community". The court concluded that "in our crime riddled societies, especially crimes involving violence, we have reached the stage where the courts should indicate by way of appropriate sentences that it has had enough of this". This, in my, view constitutes an undue accentuation of the crime. In S v Mokgiba 1999 (1) SACR 534 (O) at 538e-f/g Edeling J said:

"With regard to sentence the trial court over-emphasised the view that in general, perpetrators of violent crime should be severely punished. This approach does not mean that every offence that qualified as a violent crime inevitably deserved a severe sentence. Such an approach was simplistic, and directly in conflict with one of the most important, indispensable principles in every civilised system of criminal justice, namely the individualisation of sentence. One had to guard against anew attitude of authorities, that was beginning to filter through, even to the courts, namely that everybody had to be treated identically."

[7]

Even, if, a crime is committed in a particular societal milieu, the trial court must not fetter its discretion by over-looking the

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Patel J

personal circumstances of the...