S v Lekgoale and Another

• Jurisdiction: South Africa
• Judge: Hiemstra CJand Pickard AJ
• Judgment Date: 24 September 1982
• Citation: 1983 (2) SA 175 (B)
• Hearing Date: 24 September 1982
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

The approach to sentencing accused persons to a fine comes forward in this review. The two accused were found guilty of assault with intent to do grievous bodily harm in that they attacked the complainant with an axe. The assault was of an aggravated nature and the complainant was detained in hospital for three weeks.

The sentence was a fine of R500 or one year's imprisonment for each of the accused.

Hiemstra CJ

A reviewing Judge sent the following query:

"If the magistrate thought they could pay a fine of R500, why not rather suspend on condition that the two accused pay compensation to the complainant?"

A The alternative would have been practically the same, with the important difference that in case of compensation time could have been given for instalments and the money would have gone to the injured person instead of to the State.

The magistrate replied:

"The court knew that the accused would not be able to afford the fine B because they were unable to pay R200 bail. They are unemployed and will not be able to compensate the complainant."

This response reveals an approach to fines which calls for discussion. A fine is not an empty, meaningless gesture. It is supposed to be a device to keep a convicted person out of prison and yet to punish him.

C In general the following broad guidelines should be observed when the court considers the imposition of a fine. In the first place the court should consider whether a fine comes into the picture at all. The option of a fine is a concession to the accused and it is supposed to carry D less of a stigma than outright imprisonment. A man who committed a crime of serious violence or who has previous convictions for similar offences would normally not qualify for a fine. In general the option of a fine is given where the offence is not one of such gravity that imprisonment seems to be the only appropriate sentence.

When an option is granted, it is desirable that it should be a real option, that is to say the fine must be such that it is reasonably E possible for the accused to pay it, either from (i) cash resources of his own; or (ii) such money as he can borrow; (iii) by the realisation of such assets as he may possess. The court should therefore inquire about the accused's ability to pay (R v Frans 1924 TPD 419; R v Nhlapo 1954 (4) SA 56 (T)), unless the circumstances are quite obvious.

F If, however, the ability to pay should be strictly taken into...