S v Gudani (88/2015, A533/15) [2016] ZALMPHC 10 (18 March 2016)

/ / News, 2018, Criminal Law


The accused was charged with one count of assault with intent to inflict grievous bodily harm, for which an 18-month sentence of imprisonment was imposed. Judgment in this matter was subsequently referred to the Limpopo High Court for review.

Upon commencement of the trial in the Dzanani Magistrates’ Court (the “DMC”), the accused elected to conduct his own defence. A brief inquiry was held in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 (“the Act”), wherein admissions tendered by the accused were recorded with his consent as formal admissions in terms of section 220 thereof. Subsequent to the aforementioned inquiry, a plea of not guilty was entered into on the behalf of the accused, after it was alleged that he had acted in self-defence.

On the evidence presented by the complainant, being the only witness, the accused was found guilty of the abovementioned charge in terms of section 208 of the Act. The DMC relied on the case of S v Chabalala, wherein it was held that section 208 should only be applied when the evidence of a single witness is “clear and satisfactory” in all material respects.

Upon review, the presiding judge was particularly concerned about the severity of the sentence in light of the fact that the accused was a first-time offender.

The trial court and the Director of Public Prosecutions (“the DPP”) were invited to comment on the sentence imposed. The DPP remarked that the sentence imposed was somewhat harsh, an opinion with which the High Court concurred.

It is trite that sentencing powers lie within the judicial discretion of the trial court. Appeal or review courts are cautioned against interfering with the sentence of a sentencing court, save for instances where there has been a patent error, misdirection of the law or facts or, where there has been an irregularity that vitiates a conviction.

During review, the presiding judge stated that there was a misdirection with regards to sentencing in that the trial court ought to have accepted that, in light of the accused being a first-time offender and, furthermore, that he was nineteen years old; such factors weighed heavier in his favour for the purpose of extenuation.  Additionally, the trial court was deemed to have erred when it considered extraneous factors that were not placed before it, namely, that the accused should “have been charged with attempted murder as he assaulted the complainant on a dangerous part of the body.


In light of the errors and misdirections of the trial court which posed grave irregularities, the review court was content to alter the sentence imposed by the DMC. Accordingly, the initial sentence was set aside and replaced with a twelve-month prison sentence, with same antedated to 6 October 2015.


A review court is at large to interfere with the sentence imposed if the trial court had made an error or misdirection which posed grave irregularities.

Written by Jayna Hira and supervised by Jarryd Spargo, 11 July 2018

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