S v Maifala

• Jurisdiction: South Africa
• Judge: Stewart CJ
• Judgment Date: 15 May 1990
• Citation: 1991 (1) SACR 78 (BA)
• Hearing Date: 07 May 1990
• Counsel: F D Kgomo for the appellant L Els for the State
• Court: Bophuthatswana Appellate Division

Stewart CJ:

This is an appeal against sentence. The appellant pleaded guilty to and was convicted in the court of the regional magistrate of assault with intent to do grievous bodily harm and was sentenced to imprisonment for four years, of which two years were suspended. He G appealed unsuccessfully against the severity of the sentence to the General Division of the Supreme Court and now appeals to the Appellate Division. He does so as of right, since, as appears from the case of Sekoto v The State (CA 143/88; 3 August 1989), neither the Supreme Court of Bophuthatswana Act 32 of 1982, which repealed, in Bophuthatswana, the South African Supreme Court Act 59 of 1959 nor the Criminal Procedure H Act 51 of 1977 (RSA) as amended and applicable in Bophuthatswana require that leave to appeal in a case such as this be sought or granted. This seems to be a casus omissus which requires the attention of the Legislature.

The facts of the matter are that the appellant, while under the influence of liquor and in an emotional state of mind because of impending proceedings for a decree of divorce brought against him by his estranged wife, visited her in order to see his children. There was, I according to his wife, already in existence a tug of war concerning the custody of the children. When, on the evening in question, he stated that he had come to fetch the children and his wife, she remonstrated with him, saying that it was too late in the day, it being about 7.30 in the evening.

It is obvious from the record that something snapped in the appellant's mind and he lost control of himself. He produced a J screwdriver and stabbed his wife

Stewart CJ

A 20 times all over her body, head, face and limbs. The wounds were fortunately superficial. She was treated by a doctor. The doctor certified that she lost a lot of blood from puncture wounds but was conscious. She was not detained in hospital.

The magistrate recorded initially that the appellant had inflicted about 50 stabwounds. He later altered the record by changing the figure B of 50 to 20. He was not entitled to do this. In S v Wells 1990 (1) SA 816 (A) at 820C the Appellate Division of the Supreme Court of South Africa, after considering the two conflicting schools of thought in this regard, held that:

'The more enlightened approach, however, permits a judicial officer to change, amend or supplement his pronounced judgment, provided that the sense or substance of his judgment...