S v Naffy and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | JT Salionga J and DF Small AJ |
| Judgment Date | 25 October 2021 |
| Docket Number | 22 /2020 |
| Hearing Date | 25 October 2021 |
| Court | Northern Local Division, Oshakati |
| Citation | 2021 JDR 3027 (NmO) |
Salionga J (Small AJ concurring):
Four accused persons pleaded not guilty to the charge of assault with intent to do grievous bodily harm. After the evidence was led they were all convicted. The magistrate sentenced each accused to (12) month's imprisonment of which six (6) months imprisonment is suspended for a period of 3 years on condition that accused is not convicted of assault with intent to do grievous bodily harm read with common purpose.
The reviewing judge initially had a problem with the proceedings where accused one testified on 2 June 2020 and again on 1 September 2020 and cross-examined. I however do not have any issue with regard to the conviction.
The following query was directed to the magistrate that; 'it is apparent from the proceedings that accused one testified on 2 June 2020 and again on 1 September 2020, which of the evidence was considered for purposes of the judgment?'
The magistrate responded that the first proceedings dated 02/06/2020 should be used because that was the evidence used for judgement purpose and it was the first proceedings as opposed to the proceedings dated 01/09/2020.
When the response to the query was received, part of the proceedings of 01/09/2020 including the evidence by accused 1 did not form part of the record. Surely it could not have been an oversight on my part, otherwise the magistrate would not have conceded to the queries.
A second query was sent requesting the magistrate to submit the proceedings dated 1 September 2021 which is the subject matter of this query. The magistrate rectified the record by attaching the full record of proceedings. What resulted in accused to testify twice was the fact that after accused 1 testified and cross-examined, the matter was postponed to another date. However the magistrate is functus officio and the record can only be corrected with an order of this court. It is vital that magistrates acquaint themselves with proceedings before they proceed with the case instead of relying heavily on what the State
2021 JDR 3027 p3
Salionga J (Small AJ concurring)
prosecutors request them to do. However reading from the evidence of accused 1 there is not much of deviation and I will not dwell on the issue.
The conviction and sentence seems to be in order but the formulation of the sentence does not clearly state what the magistrate meant by …'of which six months is suspended on condition that...
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