Court name
High Court
Case number
21 of 2012

S v Shikongodolo (21 of 2012) [2012] NAHC 249 (02 October 2012);

Media neutral citation
[2012] NAHC 249
Liebenberg J
Tommasi J




CASE NO.: CR 21/2012

In the matter between:






Delivered on: 02 October 2012


accused was convicted in the magistrate’s court for the
district of Eenhana on a charge of assault with intent to do grievous
bodily harm and sentenced to ‘36 months imprisonment of which
12 months is suspended for 5 years’ on the usual conditions.
The conviction appears to be in order and will be confirmed.

[2] When the matter came on review a
query was directed to the magistrate requiring from her to furnish
substantive reasons for the sentence imposed. This came in the
form of four paragraphs styled as aggravating factors and in the
following terms, (being nothing more than a repetition of the reasons
mentioned when pronouncing sentence):

Assault with intent to do grievous bodily harm is a serious offence
which is rife [in] the district.

The weapon used [by] the accused to inflict assault on the
complainant, and the injuries sustained by the complainant is
indicated on J88.

Accused assaulted complainant with no apparent reason.

Accused deserve[s] to be [rehabilitated] and corrected so that he can
[become] a respectable law abiding businessman of the community.’

[3] The court, after hearing evidence,
convicted the accused ‘as charged’ of assault with intent
to do grievous bodily harm i.e. ‘hitting him with fists and
kicking with feet’; though it is alleged in the charge that the
complainant was hit with a stick all ‘over his body’. At
no stage did complainant testify that the accused used a stick to
assault him with. The magistrate’s reference to a weapon used
by the accused as an aggravating factor is thus misleading and not
supported by the facts as the complainant was punched and kicked.
Complainant said that he was hit with fists and when he fell down the
accused kicked him ‘about three times’. The medical
examination report handed in shows that the complainant had a
laceration and fracture of the left forearm; swollen left thigh; and
swollen left cheek. There is nothing indicative, either from the
report itself or the complainant’s testimony, that the assault
and the injuries inflicted were of serious nature. It is thus not
clear from the magistrate’s reasons on sentence which
circumstances were relied on when reaching the conclusion that the
assault perpetrated was serious. It was not established whether or
not the complainant was kicked with shod feet; neither whether his
arm got fractured as a result of the kicking or possibly when he fell
down when punched on the head. I am accordingly not persuaded that
the circumstances prevailing during the commission of the offence are
such that it requires punishment of direct imprisonment.

[4] When stating in her reasons that
the accused attacked the complainant without reason, the magistrate
clearly lost sight of the evidence adduced (and which is common
cause) that the complainant owed the accused some money which he was
supposed to take to the accused’s home. When the accused was
not at home the complainant went to a cuca shop in search of the
accused but then started buying liquor, seemingly using the money he
intended paying the accused with. When the accused later turned up
demanding payment, this led to an altercation and subsequent fight
during which the complainant got injured. A fair assessment of the
evidence, in my view, would be to find that the accused, to a certain
extent, had been provoked by the complainant. Although this per se
may not be considered to be a ground of justification, it should be a
mitigating factor taken into account in sentencing.

[5] The accused is 28 years of age; a
first offender; single and has small children. The number of children
was not established by the magistrate; neither whether they were in
the accused’s custody and whether he supports them financially.
He is self-employed in that he sells goods (unknown).

[6] Besides those circumstances
already mentioned above, the magistrate further relied on the
prevalence of assault cases dealt with in that district which,
according to her, make up 85% of all cases monthly registered in that
court. There can be no doubt that a court should have cognisance of
the number of similar cases dealt with in its jurisdiction and rely
thereon in order to impose deterrent sentences. However, it would be
wrong for such court in sentencing to over-emphasise this aspect at
the expense of an accused’s legitimate interests. The court a
did not even refer to the accused’s circumstances in
its reasons on sentence and completely ignored the fact that the
accused is a first offender having children. Although the court with
the view of imposing a deterrent sentence was entitled to consider
the prevalence of the particular offence in that district, it had
clearly given undue weight to that factor, resulting in a sentence
being imposed that differs substantially from what ordinarily would
have been considered to be appropriate punishment.

[7] In S
v Tjiho
the following
appears in the headnote:

sentencing an accused, the trial court must bear in mind the nature
of the crime, the interests of society and the interests of the
accused. These three factors are frequently referred to as the triad.

sentencing Judge or magistrate must keep in mind the purposes of
punishment and must try to effect a balance in respect of the
interests of the accused, and the interests of society in relation to
the crime itself and in relation to those purposes. Whatever the
nature of the crime may be, it is the person who committed the crime
who is to be punished. His or her personal circumstances play an
important role and must not be ignored. The nett result of this
approach, is that sentences for similar offences frequently differ
because personal circumstances differ. The personal circumstances of
the accused must be weighed in relation to the interests of society.
It is in the interests of society that the accused receive an
appropriate sentence. Furthermore, law and order must prevail in
society and society expects the court's protection against
lawlessness. The accused must be prevented from repeating his crime
and, if possible, reformed, and other persons must be deterred from
doing what the accused did.’

[8] The trial court on the one hand
failed to take into account material facts pertaining to the accused,
while on the other hand, over-emphasised the importance of other
facts which it considered to be aggravating. The sentence imposed is
startlingly inappropriate, induces a sense of shock and there is a
striking disparity between the sentence imposed by the trial court
and that which would have been imposed by this court had it sat as
court of first instance. Accordingly, the sentence cannot be
permitted to stand.

[9] In the result, the Court makes the
following order:

  1. The conviction is confirmed.

  2. The sentence imposed is set aside and
    is substituted with the following: 6 months’ imprisonment
    wholly suspended for 5 years on condition that the accused is not
    convicted of assault with intent to do grievous bodily harm,
    committed during the period of suspension.

  3. The sentence is antedated to

  4. The accused to be liberated



I concur.



NR 361 (HC).