S v Mutsinda

• Jurisdiction: South Africa
• Judge: Makhafola J
• Court: Limpopo Local Division, Thohoyandu
• Citation: 2011 JDR 1017 (LT)
• Docket Number: Information not supplied

Makhafola J:

[1]

Accused is charged with murder. He pleaded guilty to culpable homicide. A statement in terms of section 112(2) of Act 51 of 1977 signed by both the accused and his attorney admitting all elements of the offence was received by Court as exhibit "A". In the statement the accused gave a full plea-explanation admitting the contents of all exhibits from the prosecution in particular the contents of exhibit "D", the report on a medico-legal post-mortem examination of the

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Makhafola J

deceased.

[2]

He was found guilty on his guilty plea. The matter was postponed sentencing.

SENTENCE

[3]

The infliction of punishment is pre-eminently a matter for the discretion of the trial court.

Vide: S v Toms, and S v Bruce 1990 (2) SA 802 (A) at 806 H - I.

R v Mapumulo and Others 1920 AD 56 at 57.

[4]

In mitigation the personal circumstances of the accused were placed on record and I do not intend to rehearse them unless a specific aspect requires special emphasis and consideration.

PREVIOUS CONVICTIONS

[5]

The accused has previous convictions. He received imprisonment sentences which were suspended. As a repeat-offender no previous convictions may be left out of count and consideration when such offender is sentenced.

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Makhafola J

Vide: S v Zondi 1995 (1) SACR 18 (A).

Section 271A of the Act provides that certain convictions lapse as previous convictions after the expiry of ten (10) years. I am mindful of this provision.

Vide: S v Mciwathi 1985 (4) SA 22 (T) at 25 A - H.

[6]

Previous convictions whether they are related to the present offence or not do assist the Court to assess the accused's inclination and attitude to crime. This consideration will assist the Court to consider an appropriate sentence. In 2007 the accused was found guilty of assault and was fined R500.00. This offence involves violence and is directly relevant to culpable homicide. Other previous convictions are two arsons and house-breaking with intent to steal and theft, all committed during 2005.

TIME OF SENTENCING

[7]

The time of the commission of the crime and the time of sentencing have to be considered. This crime cannot be wished away because the fact that during this period the accused has committed other offences or not must be considered to determine mitigation or aggravation of the sentence. In this matter the commission of the

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Makhafola J

offence is, according to the indictment, on or about 11 July 2008. The date of sentencing is today, 26 March 2010.

Vide: S v Paulse 1990 (1) SACR 341 (W).

INJURIES ON THE DECEASED

[8]

The injuries sustained by the deceased cannot be ignored in determining the mitigating factors. The accused has fully explained the circumstances which led to the deceased being kicked...