HB 039-18 SITHEMBISO NCUBE versus THE STATE

SITHEMBISO NCUBE

versus

THE STATE

 

 

HIGH COURT OF ZIMBABWE

MATHONSI AND TAKUVA JJ

BULAWAYO 19 FEBRUARY 2018 AND 22 FEBRUARY 2018

 

 

Criminal Appeal

 

M Mpofu for the appellant

T Hove for the respondent

 

 

MATHONSI J:          The appellant appeared before a magistrate at Inyathi on 15 April 2016 charged with assault as defined in s89 (1) of the Penal Code.  He pleaded guilty and was, upon conviction sentenced to 36 months imprisonment of which 6 months imprisonment was suspended on condition of future good behaviour.

The facts are that the 42 year old appellant of village 1 Masimini, Kennilworth Inyathi had been in the company of the 43 year old complainant at Mhlongwe Bar Kennilworth Business Centre drinking beer and were drunk.  At about 2200 hours the complainant was leaving the bar intending to go home when the appellant followed him and stabbed him on the hand, the mouth and the left side of the chest with an okapi knife inflicting injuries described by the doctor who examined the complainant as serious.  The doctor also found that the degree of force used was “severe.”

The appellant has appealed against both conviction and sentence.  On conviction the appellant attacks the proceedings on the basis that he is unsophisticated and illiterate but had initially pleaded not guilty.  Therefore the court should have requested and confirmed his warned and cautioned statement in order to ascertain whether the change of plea to that of guilty was genuine.  There is no evidence that the offence was committed.

Regarding sentence the appellant complains that due weight was not given to his personal circumstances.  The court unduly placed too much emphasis on the prevalence of the offence.

 

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