S v Magadani

• Jurisdiction: South Africa
• Judge: Makhanya J
• Judgment Date: 09 November 2000
• Docket Number: CC 2/99
• Court: Venda High Court
• Hearing Date: 09 November 2000
• Citation: 2001 JDR 0321 (V)

Makhanya, J:

The accused, having been convicted of the four counts including count of murder, it is the court's unenviable and heavy task to impose the appropriate sentence.

It is trite law that the court in determining appropriate sentence, it must apply its mind to the following and I quote:

". ..the triad consisting of the crime, the offender and the interest of the society."

See S v Zinn 19692 SA 537 (A) 540 G.

In S v Sparks and Another 19723 SA 396 (A) 410 H Holmes J stated that:

"(P) Punishment should fit the criminal as well as the crime, be fair to the state and to the accused and be blended with a measure of mercy."

The accused's personal circumstances in our matter are

2001 JDR 0321 p2

Makhanya, J

the following.

He is 38 years old. At the time of his arrest in October 1998 he was working for the local government provincial services as a specialised auxiliary officer. His net income was plus-minus R2 000 per month.

At the time of his arrest according to his counsel, he had four school going dependants. Two of these children are his, born out of a previous relationship and the other two belonged to the deceased, also born out of a previous relationship. The accused regarded the deceased as his wife.

Another feature canvassed by his counsel from the bar is that at the time of the incident leading to his conviction, he was highly depressed. This may be so, but what weight should the court attach to this submission since there is no evidence led before court in this regard and the prosecution has indicated that it does not admit this ex parte statement.

See, as referred to by the state counsel, the matter of R v Hartley 19664 SA 219 (RA) at 221 and S v H 19772 SA 954 (A) at 960 H.

Further, on personal circumstances of the accused's level the court has not been taken into the accused's confidence in that it has not been explained to the court why the accused killed the deceased. The court has been left to speculate as submitted by the state which speculation may improperly lead the court to the conclusion that the accused acted without reason or has shown no remorse.

See S v Martin 1996 1 SACR 172 (W).

However, no matter how imperative accused's personal circumstances as carved out above could be, in my opinion, they are by far outweighed by the seriousness of the crimes that

2001 JDR 0321 p3

Makhanya, J

the accused has been convicted of, particularly the murder conviction and the interest of the community.

Indeed the...