S v Mukhoro and Another

• Jurisdiction: South Africa
• Judge: Lukoto, J
• Judgment Date: 26 June 2003
• Docket Number: B72/2003
• Court: Venda High Court
• Hearing Date: 26 June 2003
• Citation: 2003 JDR 0713 (V)

Lukoto J:

This matter came before me by way of automatic review.

The two accused were charged with the offence of assault with intent to do grievous bodily harm. They were convicted and sentenced to three (3) years' imprisonment each.

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Lukoto J

The charge sheet alleges that upon or about the 15th day of January 2003 at or near Lwamondo-Zwikwengani Settlement in the district of Vuwani the said accused did wrongfully and unlawfully and intentionally assaulted Mukondeleli Naphtaly Ramunenyiwa a male 66 years of age by hitting him with a bottle with intent to do the said Mukondeleli Naphtaly Ramunenyiwa some grievous bodily harm.

When the matter proceeded before Court on the 7th May 2003 they pleaded not guilty to the charge; after they had elected to conduct their own defence. Accused no.1 denied striking the complainant with a bottle and informed the Court that the complainant was the one who started attacking her.

Accused no.2 informed the Court that when she woke up in the taxi they were travelling in she found complainant and accused no.1 fighting.

The complainant testified and his evidence was corroborated to some extent by that of the taxi driver. A medical report was handed in and accepted as an exhibit. It revealed that the complainant had abrasions on the neck and right arm, there was tenderness over the left chest and a 7 cm laceration on

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Lukoto J

the scalp. Both accused testified and denied liability. They were however, found guilty as charged. The convictions appear to be in order.

After receiving the matter for review, I had certain misgivings regarding the sentence imposed. I then referred the matter to the Acting Director of Public Prosecutions for his comments on the following aspects:

1.

Was the sentence imposed appropriate where the accused were:

1.1

first offenders and

1.2

in the case of accused no.1 a single parent with two children?

2.

Did the learned magistrate not misdirect himself in imposing sentence where:

2.1

he held that it was sheer luck that complainant did not succumb and should have died, when this contention was not supported by the medical report;

2.2

he held that complainant bled in such away as if it was water dripping from a tap, when that was not the complainant's evidence and

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Lukoto J

2.2

he held that liquor played a role when there is nothing in the record to support that contention?

3.

Did the learned...