Western Cape High Court Judge Daniel Thulare held that the prosecuting court had to explore more avenues than just imposing imprisonment for the repeat offender. Picture: Armand Hough / Independent Newspapers
A man, who was a substance addict and the source of heartache and physical discomfort to his loved ones, had his sentence reviewed in the Western Cape High Court after he was incorrectly convicted for contravening the conditions of a protection order.
Due to the technicality, Judge Daniel Thulare found that the man - on one of the charges he faced - was convicted and sentenced according to an incorrectly cited and non-existent Act.
The matter was discovered during quality assurance by another magistrate, that it ought to have been submitted for review and was subsequently reviewed by the high court.
The married mechanical engineer and father of three children faced two counts - the first count related to an alleged contravention of a protection order, during which the second count arose, which was malicious damage to property, wherein the accused damaged the latch and lock of the door to the room where he ordinarily slept.
He received a three-year prison sentence.
The conviction and sentence for the contravention of a protection order were set aside but the conviction and sentence for the second charge were upheld.
The man will continue serving his three-year imprisonment which was antedated due to him already having served seven months of his sentence.
“South Africa had an Act called the Prevention of Family Violence Act, 1993 (Act No. 133 of 1993). This Act only had 9 sections and came into operation on 1 December 1993. It did not have section 17.
“The substantive provisions of that Act were repealed by the Domestic Violence Act, 1998 (Act No. 116 of 1998) which came into operation on 15 December 1999 and has 22 sections… The accused could not be competently issued with a protection order, arraigned for, and plead guilty to non-existent legislation. The conviction on count 1 was not in accordance with justice,” said Thulare.
He further added: “(While) technology advanced the smart way of working, including the availability of ‘cut and paste’ to alleviate a retyping of the same information, the professional expertise of legal experts cannot be deferred to computers, especially in the criminal justice system where like in this case. There are serious implications to the liberty of those accused of alleged criminal conduct.”
Further to this, Judge Thulare held that the prosecuting court had to explore more avenues than just imposing imprisonment for the repeat offender who could not obtain and sustain employment primarily because of addiction to drugs and alcohol.
According to Thulare, the family needed support and described the man as troublesome when he was under the influence of drugs or alcohol.
“The damage to the latch and lock of the door may sound trivial, but the impact of the conduct of the accused on his elderly parents, wife, and children surely is the source of emotional, psychological, and social trauma.
“The harm is immeasurable even in the absence of visible bleeding, a wound, or a scar to show. The magistrate did not explore these avenues. I am unable to find that the magistrate was wrong in considering direct imprisonment as a sentencing option under the circumstances.
“I, however, hold the view that this is a matter where the magistrate had to do more than just imprison. The accused and his family needed help.
“Direct imprisonment is not like some hot oven at a fast-food outlet where you simply put in something raw, and in no time something well-cooked comes out ready for consumption. In a case like this, the Commissioner for Correctional Services must be allowed to have the space to assess the accused and design a programme within and where possible even outside institutionalisation and with the assistance of the community and other experts, to correct the accused.
“The magistrate must be the first to kick that ball towards a responsive criminal justice system, especially where a distressed family needs that response with a son, husband, and father who needs serious attention.
“Other experts must be allowed into the sentencing to help a judicial officer, for judicial officers hold no magic wand. Where necessary, the sentence itself should also speak to continued expert intervention,” said Thulare.
chevon.booysen@inl.co.za