S v Mdluli

• Judge: Southwood J, Murphy J
• Judgment Date: 04 February 2009
• Citation: 2009 JDR 0061 (T)
• Docket Number: A179/08, A 88/09
• Hearing Date: 04 February 2009
• Court: Transvaal Provincial Division

Southwood J:

[1]

On 28 July 2008 the accused was found guilty of assault with intent to do grievous bodily harm in the Praktiseer magistrates' court and sentenced to three years imprisonment.

[2]

On 10 September 2008 when the matter came before this court on review the review judge queried whether it was proper to take into account previous convictions which were not properly proved by the state and whether the sentence was not

2009 JDR 0061 p2

Southwood J

excessive. The presiding magistrate commented that the accused had disclosed his previous conviction and that the sentence is not excessive. He pointed out that the accused caused serious injuries and that the offence is extremely prevalent within the area of jurisdiction of the court.

[3]

The Director of Public Prosecutions does not support the sentence which is considered to be excessive. The Director of Public Prosecutions considers that the presiding magistrate did not properly individualise the sentence and appears to have sacrificed the accused on the altar of deterrence. I agree.

[4]

The assault took place in a shebeen. The complainant and the accused exchanged insults and became involved in a brawl. The accused got the upper hand and then stabbed the complainant a number of times with a broken bottle. The complainant sustained stab wounds to his head, arm and stomach. There was no need for the accused to inflict these injuries as the complainant was defenceless. The accused emerged unscathed and was properly convicted. Nevertheless it is clear that the assault was not premeditated and was fuelled by alcohol. I agree with the Director of Public Prosecutions that a sentence of imprisonment was justified.

[5]

It seems that the presiding magistrate intended to impose an exemplary sentence and did not take into account the circumstances in which the assault took place. The dangers of an exemplary sentence were highlighter in S v Khulu 1975 (2) SA 518 (N) at 521B-522C and S v Maseko 1982 (1) SA 99 (A) at 102E-F. The

2009 JDR 0061 p3

Southwood J

failure to individualise the sentence and properly...