S v Motuko

• Jurisdiction: South Africa
• Judge: Ebrahim J and Kemp AJ
• Judgment Date: 24 November 2005
• Docket Number: CA&R48/05
• Court: Ciskei High Court
• Hearing Date: 24 November 2005
• Citation: 2006 (1) SACR 264 (Ck)

Ebrahim J: A

[1] This matter came on automatic review pursuant to the provisions of s 302 of the Criminal Procedure Act 51 of 1977 (CPA).

[2] In the court a quo the accused was charged with, and duly convicted of, the offence of assault with intent to do grievous bodily harm. The court thereupon sentenced the accused 'to B undergo 36 months' imprisonment (sic) suspended for a period of three years on condition accused is not convicted of assault with the intent to do grievous bodily harm or any offence involving violence committed during the period of suspension'. C

[3] The magistrate, when asked to comment on why the condition of suspension had been framed in such wide terms, replied as follows:

'The condition of suspension has been changed to read thus: Sentenced to undergo 36 months' imprisonment, ½ suspended for a period of three years on condition accused is not convicted of assault with the intent to do grievous bodily harm committed during the D period of suspension.'

[4] The response raises various issues. First, the magistrate has not replied directly and explicitly to the query addressed to him. Secondly, notwithstanding this, the only inference one may draw from the magistrate's response is that he concedes that he erred in framing the condition of suspension in such wide terms. Thirdly, the magistrate has failed to recognise that only the High Court is empowered to amend E the...