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[2018] ZAWCHC 33
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Gwadiso and Another v S (A425/2017) [2018] ZAWCHC 33 (16 March 2018)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A425/2017
In
the matter between:
WISEMAN
GWADISO
First
Appellant
SINIVELE
LUDONGE
Second
Appellant
and
THE
STATE
Respondent
Court:
Justice C M Fortuin
et
Justice J Cloete
Heard:
Friday 16 March 2018
Delivered:
Friday 16 March 2018
JUDGMENT
CLOETE
J
:
[1]
The appellants were convicted in the district
court at Caledon on 13 September 2016 on one count of theft
committed on 14 January
2016 in the Villiersdorp area where they
stole 650 metres of copper cabling, the property of Telkom, with a
value of R35 000.
The matter was transferred to the regional
court at Caledon for sentencing in terms of
s 116(1)(b)
of the
Criminal Procedure Act 51 of 1977
. On 28 February 2017 they were
each sentenced to 12 years imprisonment of which 4 years were
conditionally suspended.
They appeal only against their sentences
with special leave from this Division.
[2]
The police had been alerted by a Telkom employee
that one of its alarms had been activated on a farm where the cabling
was installed.
The vehicle in which the appellants were travelling
was traced and after a high speed car chase they were effectively
caught red-handed
with the cables and certain equipment in that
vehicle (both were arrested on the scene as they tried to flee after
the vehicle
collided with a fence).
[3]
The Criminal Matters Amendment Act 18 of 2015
(“the 2015 Act”) came into effect on 1 June 2016.
One of its stated
purposes (as reflected in the preamble) was to
amend the Criminal Law Amendment Act 105 of 1997 (“the 1997
Act”) so
as to regulate the imposition of discretionary minimum
sentences for essential infrastructure-related offences.
[4]
An ‘
essential
infrastructure’
is defined in s 1
of the 2015 Act as meaning:
‘
any
installation, structure, facility or system, whether publicly or
privately owned, the loss or damage of, or the tampering with,
which
may interfere with the provision or distribution of a basic service
to the public…’
[5]
A ‘
basic service’
is in turn defined as meaning:
‘
a
service, provided by the public or private sector, relating to
energy, transport, water, sanitation and communication, the
interference
with which may prejudice the livelihood,
well-being, daily operations or economic activity of the public…’
[6]
One of the consequential amendments to the 1997
Act was to introduce, in Part II of Schedule 2, the following:
‘
Theft
of ferrous or non-ferrous metal which formed part of essential
infrastructure, as defined in section 1 of the Criminal Matters
Amendment Act, 2015 –
(a)
if it caused –
(i)
interference with
or disruption of any basic service, as defined in section 1 of
the aforementioned Act, to the public; or
(ii)
damage to such
essential infrastructure…’
[7]
A further consequential amendment to the 1997 Act
was the introduction of Part V, which refers to:
‘
Any
offence referred to in section 36 or 37 of the General Law Amendment
Act, 1955 (Act No 62 of 1955), involving ferrous or non-ferrous
metal
which formed part of essential infrastructure, as defined in section
1 of the Criminal Matters Amendment Act, 2015.
Theft,
involving ferrous or non-ferrous metal which formed part of essential
infrastructure, as defined in section 1 of the Criminal
Matters
Amendment Act, 2015, which is not covered in Part II of this
Schedule.’
[8]
Section 36 of the General Law Amendment Act deals
with the failure to give a satisfactory account of possession of
goods, and s 37
with the absence of reasonable cause for
believing that goods have been properly acquired, and have no
relevance to the present
matter.
[9]
In giving consideration to a suitable sentence,
the magistrate was mindful of the new provisions in the 1997 Act, but
only to the
extent that they are indicative of the seriousness with
which the legislature regards the type of offence in question. In
terms
of s 51(2) thereof, conviction of a first offender for any
offence in Part II of Schedule 2 attracts a minimum sentence of
15
years imprisonment, and in Part V, a minimum sentence of 3 years
imprisonment, subject of course to the provisions of s 51(3).
[10]
One of the grounds of appeal is that the
magistrate erred in accepting that the offence would otherwise have
fallen under Part II
of Schedule 2, whereas in fact it would
otherwise have fallen under Part V.
[11]
However as pointed out on behalf of the
respondent, it was the undisputed evidence of Telkom’s
employee, Mr Fennie, that
the service provided by Telkom is an
essential service in the infrastructure of the community. It was also
the undisputed evidence
of Warrant Officer Van Dyk that upon visiting
the scene he found at least four telephone poles where the cables had
been cut and
removed. Moreover, the appellants were found in
possession of equipment suitable to cut the cabling.
[12]
It is therefore clear that, given the theft and
damage to essential infrastructure in the provision of a basic
service, the appellants’
convictions would have attracted the
prescribed minimum sentence contained in Part II and not Part V of
Schedule 2 of the 1997
Act. There is thus no merit in this ground of
appeal.
[13]
The appellants submit that the magistrate also
erred in failing to attach “sufficient” weight to all
relevant sentencing
factors, in particular not differentiating
between their personal circumstances and not taking into account the
period of 14 months
that they were incarcerated awaiting trial. A
related complaint is that she failed to consider whether the second
appellant is
a suitable candidate for correctional supervision.
[14]
While it is so that the magistrate did not
mention the appellants’ pre-trial incarceration period in her
judgment, this does
not necessarily mean that it was overlooked: see
S v Pillay
1977 (4) SA
531
(A) at 535B. The sentences that she imposed indicate that she did
not in fact overlook it. Moreover, in her judgment refusing leave
to
appeal she specifically stated that she had taken this into account.
[15]
The magistrate set out the appellants’
personal circumstances which are unremarkable, as well as the fact
that the first appellant
has three previous convictions for
dishonesty (two of housebreaking and one of housebreaking with intent
to steal and theft) whereas
the second appellant has no such previous
convictions.
[16]
She correctly considered the fact that the
legislature has deemed theft, coupled with destruction of essential
infrastructure providing
basic services to the public at large, to be
sufficiently serious to warrant a prescribed minimum sentence of 15
years direct imprisonment
in the case of a first offender. The
prevalence of this type of offence, and its consequences not only to
the service providers
but also to the public at large, cannot be
sufficiently underscored. It is also noted that the 2015 Act came
into force just five
months after the commission of the offence (on 1
June 2016).
[17]
The magistrate took into account that the offence
was in all likelihood motivated by greed, given that both appellants
were employed
and earning an income. As submitted on behalf of the
respondent, the evidence also established that this was a carefully
planned
and executed crime in an isolated area, and were it not for
the security measures which Telkom itself had put in place at its own
expense, there is a real likelihood that the appellants would not
have been traced and apprehended.
[18]
While it is trite that a court must adopt an
individualised approach to sentencing, the only truly relevant factor
in the present
matter is the difference between the previous
convictions of the two appellants. However, merely because the first
appellant received
the same sentence as the second appellant, it does
not necessarily follow that therefore the second appellant’s
sentence
is too harsh or disproportionate to the offence. It must
also be borne in mind that the first appellant has no previous
convictions
for an offence of this specific nature.
[19]
I agree with the respondent’s submission
that, in serious crimes such as the present, deterrence should play a
significant
role when weighed against the other traditional factors.
Moreover, to impose a sentence of correctional supervision in this
case
would be sending out a completely wrong message to others who
are minded to commit these crimes.
[20]
In my view, not only were the sentences imposed
proportionate to the offence, but they are also not grossly
disproportionate to
what the individual appellants deserve: see
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at paras [26]
and [31] to [41]. They are therefore not shocking, startling or
disturbingly inappropriate. There was also no
material misdirection
by the magistrate.
[21]
In the result I propose the following order:
‘
The
appeals of the first and second appellants against their respective
sentences are dismissed.’
__________________
J I CLOETE
FORTUIN
J
:
I
agree and it is so ordered.
__________________
C M FORTUIN
For the Appellants:
Mr H
Carstens
Instructed by
: Legal Aid
For the Respondent:
Adv Susan
Galloway
Instructed by:
State Attorneys