S v Mkhize

• Jurisdiction: South Africa
• Citation: 1978 (3) SA 1104 (TkS)

S v Mkhize
1978 (3) SA 1104 (TkS)

1978 (3) SA p1104

Citation	1978 (3) SA 1104 (TkS)
Court	Transkei Supreme Court
Judge	Munnik CJ and Rose Innes J
Heard	September 23, 1977
Judgment	June 22, 1978

Flynote : Sleutelwoorde D

Criminal procedure — Sentence — Previous convictions — Contraventions of ss 150, 236 and 243 of Act 24 of 1886 (C) — Such to be equated with their common law counterparts in Act 56 of 1955, Schedule III, Part I, Group 1.

E Criminal procedure — Sentence — Imprisonment for corrective training — When such sentence competent — Accused convicted of contravening s 243 of Act 24 of 1886 (C) — Can be so sentenced if other requirements of s 334 ter of Act 56 of 1955 present.

Headnote : Kopnota

F An accused's previous convictions for assault with intent to do grievous bodily harm and arson, as charged under ss 150 and 236, respectively, of Act 24 of 1886 (C), are to be equated with their common law counterparts referred to in Group I of Part I of the Third Schedule to Act 56 of 1955. Likewise a contravention of s 243 of Act 24 of 1886 is to be equated with the common law offence of malicious injury to property referred to in Group I.

An accused convicted of contravening s 243 of Act 24 of 1886 (C) may, if G the other requirements of the section are present, be sentenced to corrective training in terms of s 334ter of Act 56 of 1955.

Case Information

Argument on review.

J D Pickering for the accused at the request of the Court.

T Fourie for the State.

Cur adv vult. H

Postea (June 22).

Judgment

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

1978 (3) SA p1105

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...