Justice Mogoeng’s judgment in partner abuse case

 

NO. 8/2001

 

IN THE HIGH COURT OF SOUTH AFRICA

 

(BOPHUTHATSWANA PROVINCIAL DIVISION)

 

In the matter between:

 

THE STATE

 

and

 

ERIC MATHIBE

 

_______________________________________________________________________

 

REVIEW JUDGMENT

 

_______________________________________________________________________

 

MOGOENG J

 

 [1] On 23 November 1999 the accused tied the complainant, his girlfriend, with a wire to the rear bumper of a vehicle. He then drove that vehicle on a gravel road at a fairly high speed over a distance of about 50 metres. The objective of this exercise was to drag the complainant and cause her grievous bodily harm.

 

[2] The complainant did sustain several abrasions on her stomach, right thigh and both knees. She was in pain but the accused refused to let her have medical treatment on the day of the incident. He only took her to consult the doctor the next day.

 

[3] He was eventually charged with assault with intent to do grievous bodily harm to which he pleaded guilty and was correctly  convicted as charged.

 

[4] The court then sentenced the accused to undergo an effective term of 2 years imprisonment. I queried the severity of the sentence but the learned Magistrate defended it. The grounds he relied on in support of the sentence were that:

 

4.1 the offence is prevalent in the Odi district;

 

4.2 this type of offence is mainly committed against women;

 

4.3 dragging a woman in the manner the accused did is ancient and barbarous;

 

4.4 the sentence is intended to deter potential offenders.

 

[5] All these are valid and legitimate factors which must be taken into account. They all justify the imposition of a heavy sentence. I am, however, not convinced that they justify a sentence of two years imprisonment, without the option of a fine and of which no part is suspended. In my view, the imposition of an effective term of two years imprisonment in circumstances where the accused is a first offender, who pleaded guilty and thereby showed remorse, who was provoked by the complainant and the complainant did not sustain serious injuries, cannot be in accordance with justice. It is too harsh by any standards.

 

[6] The accused should have been given an option of a fine and half of the sentence should at least have been suspended. I think that a fine of R4 000.00 should have been fixed. It is sufficient, for a person of the accused’s financial means, to demonstrate the serious light in which the court views the offence and still offers the accused an opportunity to secure his freedom at great expense. The effect of suspending half of the sentence would be to have it hang over the head of the accused as a constant reminder that violence will land him in trouble.

 

[7] I will, therefore, confirm the conviction and set aside the sentence and substitute the following therefor:

 

“R4 000.00 or 2 years imprisonment of which half is suspended for 5 years on condition that the accused is not convicted of an offence involving violence, committed during the period of suspension and in respect of which the accused is sentenced to undergo imprisonment without the option of a fine.”

 

M.T.R. MOGOENG

 

REVIEWING JUDGE

 

I agree

 

M.M. LEEUW

 

JUDGE OF THE HIGH COURT

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