S v Mkhize

• Jurisdiction: South Africa
• Judge: Munnik CJ and Rose Innes J
• Judgment Date: 22 June 1978
• Citation: 1978 (3) SA 1104 (TkS)
• Hearing Date: 23 September 1977
• Court: Transkei Supreme Court

Munnik CJ:

The accused was charged with the offence of "Act 24 of 1886 s 243 malicious injury to property", the particulars to the charge alleging that he

"did wrongfully and unlawfully and maliciously break the property to

Munnik CJ

wit crockery by throwing stones at the said crockery through the window".

The accused was convicted and on the evidence correctly so. The magistrate sentenced him to five months' imprisonment. When the magistrate forwarded A the matter for review he wrote an accompanying letter in the following terms:

"Although I was fully aware of the sanctions laid down in s 243 of Act 24 of 1886 and the remarks of the CHIEF JUSTICE in the matter of S v Nqukumfana Kobo, I wish to point out that, in imposing the sentence of five months' imprisonment, I was influenced by the accused's list of previous convictions."

B The following query was addressed to the magistrate:

"In view of his record does the accused not qualify for imprisonment for corrective training but is imprisonment for corrective training a competent sentence having regard to the sanction provided by s 243 because in terms of the latter there must be a fine and the application C of s 334 of Act 56 of 1955 will mean he goes to prison without the option of a fine."

The magistrate replied saying he felt the provisions of s 334ter (2) applied but, as I had reservations about the applicability of the section, the matter was set down for argument and Mr Fourie appeared for the State and Mr Pickering, at the request of the Court, for the accused. The Court D is indebted to both counsel for their helpful arguments.

The record referred to in the query and in the magistrate's letter reveals that the accused has two previous convictions for assault with intent to do grievous bodily harm in contravention of s 150 of Act 24 of 1886 and two for malicious injury to property in contravention of s 243 of Act 24 E of 1886 and another for arson in contravention of Act 24 of 1886, in respect of each of which offences he was sentenced to imprisonment either simpliciter or by of alternative to a fine, and he has had imposed upon him periods of imprisonment totalling 18 months.

Group 1 of Part 1 of the Third Schedule to Act 56 of 1955 includes the F following offences: assault with intent to do grievous bodily harm, arson, and malicious injury to property.

Three questions arise for consideration:

1.

Must the accused's previous convictions for assault with intent to do grievous bodily harm and arson as charged in terms of the relative G sections of Act 24 of 1886 (viz 150 and 236) be equated with assault with intent to do grievous bodily harm and arson referred to in Group 1 supra, having regard to the fact that he was convicted of the statutory offences referred to above and not under the common law?

2.

Must a contravention of s 243 of Act 24 of 1886 be equated with the H common law offence of malicious injury to property referred to in Group 1 supra.

3.

If the answer to both the aforegoing questions is in the affirmative, can imprisonment for corrective training be imposed in the circumstances of this case, when s...