Jan Farmer v Die Staat

The appellant was charged in the Welkom Magistrate's Court with two counts of assault with intent to cause grievous bodily harm. According to the charge sheet, on 8 February 1998 at the Bell-Air club in Goudstraat, Bronville, the appellant stabbed two complainants with a knife. The appellant pleaded not guilty and did not provide a plea explanation. Only the two complainants and the appellant testified. On 13 May 1998 the appellant was convicted. On 26 August 1998 he was sentenced to nine months imprisonment on each of the two counts, of which three months was suspended conditionally. In effect, the appellant was sentenced to 12 months imprisonment. The appellant intended to appeal against the sentence imposed. His notice of appeal was filed outside the prescribed period in the Free State Provincial Division (court a quo). He applied for condonation for the late filing.

• Whether the magistrate erred in not imposing corrective supervision as a sentencing option instead of direct imprisonment
• Whether the magistrate properly exercised his discretion in imposing sentence
• What the appropriate procedure is when hearing an application for condonation for late filing of a notice of appeal where the only disputed point is the merits of the case
• Whether there were reasonable prospects of success on appeal against the sentence

The appeal was dismissed.

Where the only disputed issue in an application for condonation for late filing of a notice of appeal is the merits of the intended appeal, the matter should be dealt with as an appeal on the merits rather than merely as a condonation application. On appeal against sentence, the test is not whether other appropriate sentences could have been imposed, but whether the sentencing court improperly exercised its discretion. Corrective supervision is one sentencing option in the spectrum of available options, and courts must guard against imposing it too readily in inappropriate circumstances as this would bring the administration of justice into disrepute. A sentencing court's consideration and rejection of corrective supervision as a sentencing option does not constitute a misdirection or improper exercise of discretion, provided the option was properly considered.

The court observed that it is normally desirable that in a case of assault with intent to cause grievous bodily harm, medical evidence regarding the seriousness of the injuries sustained by the complainant should be presented, though this is not an absolute requirement if sufficient other evidence is available to assess the seriousness of injuries. The court noted the anomaly in the appeal procedure arising from section 20(1) of the Supreme Court Act 59 of 1959, whereby a person whose application for condonation fails in the Provincial Division has an automatic right of appeal to the SCA even if the application failed due to lack of prospects of success, whereas if the first appeal had been properly prosecuted and failed on the merits, leave would be required to appeal to the SCA.

This case is significant for establishing the appropriate procedure when hearing applications for condonation for late filing where the only dispute is the merits of the intended appeal. It clarifies that in such cases, the matter should be dealt with as an appeal on the merits to avoid the undesirable consequences of having two courts potentially express contradictory views on the same matter. The case also provides guidance on the proper approach to corrective supervision as a sentencing option, emphasizing that it is one option in the spectrum of sentencing options and should not be imposed too readily in inappropriate circumstances. The judgment reinforces the principle that on appeal against sentence, the test is not whether another appropriate sentence could have been imposed, but whether the trial court failed to properly exercise its discretion.