S v Ningi and Another

• Jurisdiction: South Africa
• Judge: F H Grosskopf JA, Scott JA, Plewman JA
• Judgment Date: 29 September 2000
• Citation: 2000 (2) SACR 511 (A)
• Hearing Date: 26 September 2000
• Counsel: P K Cronje for the appellants. J C Coetzee for the State.
• Court: Appellate Division

S v Ningi and Another
2000 (2) SACR 511 (A)

2000 (2) SACR p511

Citation	2000 (2) SACR 511 (A)
Court	Appellate Division
Judge	F H Grosskopf JA, Scott JA, Plewman JA
Heard	September 26, 2000
Judgment	September 29, 2000
Counsel	P K Cronje for the appellants.; J C Coetzee for the State.

Flynote : Sleutelwoorde

Appeal — Against sentence — Powers of Court on appeal — To impose form of sentence which was not available to trial court B when sentence imposed — Imposition of correctional supervision or imprisonment subject to correctional supervision — Trial court could not impose correctional supervision because of seriousness of other offences of which accused convicted and C which merited imprisonment but those other convictions set aside on appeal — Court of appeal entitled to reconsider sentence against option of correctional supervision.

Public violence — Sentence — Correctional supervision — Accused having joined mob at late stage and participated to limited D extent — Accused first offenders and in steady employment — Correctional supervision an appropriate sentencing option.

Headnote : Kopnota

The appellants had been convicted in a regional court of murder, attempted murder and public violence and were E sentenced to terms of imprisonment on all counts, including a sentence of 18 months imprisonment on the public violence count. The convictions arose out of a dispute between two rugby teams composed of workers employed at a sawmill. One of the members of a team was assaulted by a member of the other which resulted in the members of a certain dormitory at the sawmill attacking the members of another dormitory. The members of that dormitory mounted a retaliatory attack but with fatal consequences. The appellants were members of the F attacking party but on appeal to a Provincial Division their convictions on the counts of murder and attempted murder were set aside. In a further appeal against the sentence counsel for the appellants pointed out that in view of the appellants' convictions and the sentences imposed on the counts of murder and attempted murder, correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977 (or imprisonment in G terms of s 276(1)(i)) was not an option available to the regional magistrate when imposing sentence for the count of public violence. Once, however, the appeal against the former convictions were upheld in the Court a quo so that the sentence of 18 months on the public violence count stood alone, this obstacle no longer existed when considering the appropriateness of the sentence. H

Held, that there could be no doubt that a Court of appeal was entitled to reconsider the sentence imposed against the option of correctional supervision (or imprisonment in terms of s 276(1)(i)). If the position were otherwise, it would mean that the appellants would be prejudiced by the incorrect finding of guilt on the counts of murder and attempted murder. It was apparent from the judgment of the Court a quo granting the appellants I leave to appeal that the imposition of correctional supervision, or imprisonment subject to the provisions of s 276(1)(i), was not considered as the issue was not raised before it.

Held, further, that in the light of the fact that the appellants were first offenders in fixed employment, that they had joined the mob at a late stage and that their degree of participation was limited, correctional supervision was an appropriate J

2000 (2) SACR p512

A sentencing option and the matter accordingly had to be remitted to the magistrate for the consideration thereof. Appeal upheld.

Case Information

Appeal from a decision on appeal in the Eastern Cape Division.

P K Cronje for the appellants.

J C Coetzee for the State.

Cur adv vult. B

Postea (September 29)

Judgment

Scott JA:

C [1] As long ago...