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[2021] ZAWCHC 160
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Phutumani v S (A 127/2021) [2021] ZAWCHC 160 (18 August 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
No: A 127/2021
In
the matter
between:
MZIMASI
PHUTUMANI
APPELLANT
And
THE
STATE
RESPONDENT
Bench: Dolamo, J and Lekhuleni,
AJ.
Heard: 06 August 2021
Delivered: 18 August 2021
This judgment was handed down
electronically by circulation to the parties' representatives via
email and release to SAFLII. The
date and time for hand-down is
deemed to be 18 AUGUST 2021 at 10h00.
JUDGMENT
LEKHULENI
AJ
:
INTRODUCTION
[1]
This matter came to this court by way of an appeal against sentence
from the decision
of the Magistrate’s Court, Vredendal. The
appellant, Mr Mzimasi Phuthumani was charged in the Magistrates Court
for the District
of Vredendal on one count of Housebreaking with
intent to steal and theft. In the alternative, the appellant was
charged with the
contravention of section 36 of the General Law
Amendment Act 62 of 1955 in that on 14 July 2020 and at or near Flat
Waterbridge
Lutzville, in the district of Vredendal he was found in
possession of goods other than stock or produce as defined in section
1
of the Stock Theft Act 57 of 1959, to wit a Generator in regard to
which there was a reasonable suspicion that the said generator
had
been stolen and the appellant was unable to give a satisfactory
account of such possession.
[2]
In the second alternative, the appellant was charged with the
contravention of section
37 of the General Law Amendment Act 62 of
1955 in that on the same date and place, the appellant unlawfully and
wrongfully received
into his possession stolen goods from a person
unknown to the prosecution to wit, a Generator valued at R15000
without having reasonable
cause for believing at the time of such
acquisition or receipt that such goods were the property of the
person from whom he had
received it or that such person had been duly
authorised by the owner thereof to deal with or dispose of it. The
appellant was
legally represented throughout the trial.
[3]
On 28 October 2020 he pleaded guilty to the alternative charge of
possession of stolen
property. The accused’s legal
representative submitted a statement in terms of section 112(2) of
the Criminal Procedure Act
51 of 1977 (“
the CPA”
).
His guilty plea was accepted by the prosecution and the court
summarily convicted him of possession of stolen property. After
hearing argument on sentence the trial court sentenced him to direct
imprisonment for twelve months.
[4]
Aggrieved by this result the appellant applied for leave to appeal
against the sentence
in terms of s 309B(1)(a) of the CPA and his
application was duly granted by the presiding Magistrate. The
appellant’s grounds
of appeal can succinctly be summarized as
follows:
1.
In the main the appellant contend that the
Magistrate erred in finding that he had no alternative but to
sentence the accused to
direct imprisonment.
2.
That the court overemphasised the seriousness of
the offence and failed to take into account the personal
circumstances of the accused,
in particular, that the he was a first
offender. It bears mentioning that the appellant denied a previous
conviction of housebreaking
reflected on his record of previous
conviction (SAP69).
3.
That the court a quo failed to take into account
the fact that the complainant did not suffer prejudice or loss as the
property
in question was recovered.
4.
That the trial court erred in disregarding the
request by the prosecutor to impose a wholly suspended sentence
considering the fact
that the accused was remorseful for what he did
and that the items were recovered. Consequently, the complainant did
not suffer
any loss.
5.
More importantly, that the trial court erred in
taking the previous conviction of housebreaking into account
notwithstanding the
fact that the appellant disputed it and same was
not proven by the prosecution.
FACTUAL
BACKGROUND
[5]
The facts gleaned from the appellant’s statement in terms of
section 112(2)
were that on the day mentioned in the charge sheet,
one Quinton and another male person (his companion) visited the
appellant at
his place of residence. They had in their possession a
generator. Quinton told the appellant that his companion was selling
a generator.
The appellant then bought the generator for R750 from
Quinton’s companion. Two weeks later, Quinton called the
appellant,
told him that his companion had stolen from his family the
generator that was sold to the appellant and that the said family was
looking for it. Quintin came to Lutzville where the appellant
lived to fetch the generator. The appellant gave Quintin the
generator and decided to drive with Quintin so that he could go and
demand his refund from the seller. On the way, he was arrested
by the
police who demanded to know the owner of the generator. The appellant
admitted that at the time of receipt of the generator,
he had no
reasonable cause to believe that it was not the property of the
person who sold it to him or that the person in question
had no
authority to dispose such good.
ARGUMENTS
BY THE PARTIES
[6]
Ms Abdurahman, for the appellant, argued that the trial court failed
to consider the
fact that the stolen item was recovered without any
damage, thus no loss was suffered by the complainant. She contended
that the
court
a quo
failed to consider imposing a wholly
suspended sentence as the prosecution and the defence deemed it an
appropriate sentence. Counsel
argued that the trial court failed to
strike a balance in the triad and considered direct imprisonment to
be the only suitable
sentence without providing reasons for such
finding. In the main, it was contended that the trial court
overlooked the personal
circumstances of the appellant and the fact
that the stolen item was recovered and thus, the complainant was not
impoverished.
Ms Abdurrahman implored the court to set aside the
sentence imposed by the trial court and substitute it with an
appropriate sentence.
[7]
Meanwhile, Ms Sibiya the respondent’s legal representative
raised a preliminary
point from the bar that the proceedings in the
court
a quo
have not been terminated. In other words, the
lis
between the appellant and the respondent was not terminated. Counsel
contended that in the court a quo the appellant faced three
charges,
namely, housebreaking with intent to steal and theft which served as
the main count, in the alternative, contravention
of section 36 of
Act 62 of 1955 (possession of suspected stole property), and in the
second alternative, contravention of section
37 of Act 62 of 1955
(Receiving stolen property). Ms Sibiya argued that the appellant
pleaded to the main and the alternative counts
and the prosecutor
accepted his plea on the first alternative count; and that the trial
court convicted the accused on the first
alternative count but failed
to make a determination on the main and the second alternative count.
To this end, she contended that
the proceedings in the court a quo
were not terminated and that this matter should be referred back to
the trial court to address
this alleged irregularity.
[8]
On the merits of the matter, the respondent’s counsel argued
that in a case
such as this, this court must be guided by the
principle that punishment is pre-eminently a matter for the
discretion of the trial
court and the appeal court should be careful
not to erode that discretion. Counsel contended that the sentence
should only be altered
if the discretion has not been judicially and
properly exercised. It was further contended that a court of appeal
may not in the
absence of a material misdirection by a trial court
substitute the trial court’s sentence simply because it prefers
its own
sentence as this will usurp the discretion of the trial
court. On being question by the court as to whether the trial court
gave
reasons for imposing the sentence of twelve months direct
imprisonment, the respondent’s counsel conceded that, on this
point,
the trial court misdirected itself by imposing a sentence
without
giving reasons for such a
finding. She further conceded that the trial court should have
imposed a wholly suspended sentence as
it was proposed by the
prosecutor in the court a quo.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
Are
the proceedings of the court a quo not terminated by the appellant’s
plea of guilty to the alternative charge
?
[9]
This appeal is only against sentence. As discussed above, it has been
argued that
the
lis
between the state and the defence was not
terminated because the trial court did not make a finding on the main
and the second
alternative count after the prosecutor accepted the
appellant’s plea on the first alternative count. In
S v
Ngubane
1985 (3) SA 677
(A) at 683E–F the Appellate
Division, as it then was, stated the following in respect of the
acceptance of a plea by a prosecutor
at the commencement of the
trial:
‘
It
must be seen as a
sui
generis
act by the
prosecutor by which he limits the ambit of the
lis
between the State and
the accused in accordance with the accused's plea. Whether one in a
case such as the present speaks of amendment,
withdrawal or
abandonment of the murder charge does not really seem to matter. That
the
lis
is
restricted by acceptance of the plea appears from ss 112 and 113. The
proceedings under the former are restricted to the offence
'to which
he has pleaded guilty' and the latter must be read within that
frame.’
[10]
Meanwhile in
S v Tshilidzi
[2013] JOL 30585
(SCA), the Supreme
Court of Appeal dealt with a similar point: the appellant had pleaded
not guilty to the main charge of rape,
but pleaded guilty to the
alternative charge of contravention of section 14(1) of the Sexual
Offences Act 23 of 1957. A statement
was prepared in terms of section
112(2) of the CPA, and was accepted by the prosecutor. The contents
of the statement indicated
that the appellant was guilty of the
offence to which he had pleaded guilty. However, the trial court
refused to accept the plea
of guilty on the alternative charge. As a
direct result thereof, the appellant withdrew the plea of guilty on
the alternative charge
and pleaded not guilty on both the main and
alternative charges. The trial proceeded on that basis and the court
convicted the
appellant of the main count of rape. On appeal to the
Supreme Court of Appeal, the court found that in refusing to accept
the plea
of guilty on the ground that it was inconsistent with the
summary of substantial facts that accompanied the indictment in terms
of
section 144(3)(a)
of the
Criminal Procedure Act, the
trial court
committed a gross irregularity. The court held that the acceptance by
the prosecutor of the plea of guilty on the alternative
charge had
the result of removing the main charge from the indictment.
Therefore, the conviction on the main charge was not competent.
[11]
From the above authorities, it
is abundantly clear that the argument of the respondent’s
counsel is misplaced.
The acceptance by the prosecutor of the
appellant’s plea of guilty on the first alternative charge of
possession of suspected
stolen property in terms of
section 36
of Act
62 of 1955, had the result of removing the main charge and the second
alternative from the charge sheet. - See
S v Cordozo
1975 (1)
SA 635
(T) were similar sentiments were echoed. It follows
therefor that the preliminary point raised must be dismissed. This
leads
me to the evaluation of the appeal on the merits.
Appeal
on the Merits
[12]
It is trite that sentencing is pre-eminently a matter for the
discretion of the trial court and
that an appeal court should be
careful not to
erode such discretion unless it has not been
judicially exercised, or the trial court misdirected itself to such
an extent that
its decision on sentence is vitiated, or the sentence
is so disproportionate or shocking that no reasonable court could
have imposed
it – (See
S v Rabie
1975 (4) SA 866
(A
)
at 857D-F;
S v Bogaards
2013 (1) SACR 1
(CC) para 41). In
S v Malgas
2001(1)
SACR 469 (SCA) at 478D,
the Supreme Court of Appeal
restated the
correct
approach in dealing with an appeal on sentence as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh. In doing
so, it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate court is at large. However, even in the absence of material
misdirection, an appellate court may yet
be justified in interfering
with the sentence imposed by the trial court. It may do so when
the disparity between the sentence
of the trial court and the
sentence which the appellate court would have imposed had it been the
trial court is so marked that
it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate’.
[13]
In this matter, the court imposed a sentence of twelve months
imprisonment. From the reading
of the record, it is evident that the
court did not assess the elements of the triad in earnest. In his
judgment on sentence, the
magistrate referred to the personal
circumstances of the appellant and to the address of the prosecutor
to the effect that the
appellant was convicted of a very serious
offence. The court then proceeded to impose a sentence of twelve
months imprisonment
notwithstanding that both the prosecutor and the
defence prayed for a wholly suspended sentence. It is truism that the
court is
not bound by the submissions of the parties however in my
view, it is incumbent upon the court to consider those submissions.
[14]
The prosecutor implored the court to impose a wholly suspended
sentence and gave reasons for
those submissions. The court engaged
the prosecutor as to why she was requesting a suspended sentence. The
prosecutor submitted
that the stolen item was recovered and the
complainant did not suffer prejudice or was not impoverished. She
also submitted that
the appellant did not waste the court’s
time but pleaded guilty to the charge thereby showed remorse for what
he did. The
magistrate thereupon indicated that he will strike a
balance of the triad and he subsequently imposed a sentence of twelve
months
direct imprisonment without addressing the issues raised
during argument nor giving proper reasons for his judgment.
[15]
In my view, the reasons given by the court were perfunctory and not
well-reasoned or substantiated.
In the one-and-a-half-page judgement,
the magistrate did not deal with all the elements of the triad. In my
view, the court took
a generalised approach to sentencing and failed
lamentably to address in detail the competing interest of the triad.
It must be
stressed that a sentencing court should always be
preoccupied in finding a balance among all the different interests
involved.
Sentencing therefore, is about achieving the right balance
between the triad.
[16]
It would appear from the severity of the sentence that the court a
quo over-emphasised the appellant’s
two previous convictions of
assault and, inadvertently took into consideration an alleged
previous conviction of house breaking
which the accused disputed,
although it had indicated that it would disregard it. From a reading
of the judgment on sentence, it
is doubtful if indeed the previous
conviction of housebreaking was disregarded by the court especially
because the court mentioned
it as a previous conviction of the
accused notwithstanding that
no
such conviction was proved by the State.
[17]
It is trite that the fact that other sentencing options existed and
might have been resorted
to is not the test on appeal. The question
before this court is whether the sentence chosen by the trial court
is unjust, in the
sense that the trial court materially misdirected
itself in its imposition. On a conspectus of all the facts that were
placed before
the trial court, I am of the view that the sentence of
twelve months imprisonment in these circumstances is excessive and
induces
a sense of shock. The sentence displays a total disregard of
the personal circumstances of the accused and other facts relevant
to
sentence that were placed before the trial court.
[18]
It is a matter of concern in this matter that the trial court imposed
a sentence of twelve months
imprisonment without giving reasons in
support of such findings. Our law reports are replete of
authorities
that emphasised the importance of giving reasons for our judgments.
This judicial injunction is critical in our jurisprudence. It enables
the court to explain itself how it navigated the issues and
how it
reached its decision. The accused as well is entitled to
know
why a particular decision was taken especially
where
such a decision has adverse consequences to him.
In
S v Mokela
2012 (1) SACR 431
(SCA) at para 12
Bosielo JA, as he then was, stated as follows:
‘
I
find it necessary to emphasise the importance of judicial officers
giving reasons for their decisions. This is important and critical
in
engendering and maintaining the confidence of the public in the
judicial system. People need to know the courts do not act
arbitrarily, but base their decisions on rational grounds. Of even
greater significance is that it is only fair to every accused
person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse consequences
for such
an accused person. The giving of reasons becomes even more critical,
if not obligatory, where one judicial officer interferes
with an
order or ruling made by another judicial officer.’
[19]
In my view, the trial court failed to heed this judicial injunction
when it imposed the sentence
against the accused. In my opinion,
absent any such reasons the conclusion becomes inescapable that the
decision by the trial court
was whimsical and bereft of rationality.
It is further my view that the sentencing court failed to exercise
its discretion judicially
thus, it committed a misdirection that
warrants an intervention by this court. For the foregoing reasons,
this court deems it proper
to consider the sentence afresh.
[20]
It has been said that the imposition of sentence is not a mechanical
process in which predetermined
sentences are imposed for specific
crimes. It is a nuanced process in which the court is required to
weigh and balance a variety
of factors to determine a measure of the
moral, as opposed to legal, blameworthiness of an accused. That
measure is achieved by
a consideration, and an appropriate balancing,
of what the well-known case of
S v Zinn
1969 (2) SA 537
(A),
at 540G-H described as a ‘triad’ consisting of the crime,
the offender and the interests of society’ (see
S v Clayton
Arendz and Others,
Case number CC96/09 (01 March 2010) (ECH). In
S v Banda
1991 (2) SA 352
(B) at 355A Friedman J, as he then
was, noted that ‘the elements of the triad contain an
equilibrium and a tension. A court
should, when determining sentence,
strive to accomplish and arrive at a judicious counterbalance between
these elements in order
to ensure that one element is not unduly
accentuated at the expense of and to the exclusion of the others.’
[21]
The personal circumstances of the accused as appears from the record
were that he was 25 years
of age. He was single but was living with
his girlfriend. He has two minor children aged 6 and 2 respectively.
He has been staying
in Lutzville for the past 5 years and he has
passed grade 12. He lost his employment due to the impact of Covid-19
and he is now
currently working as a driver on a casual basis. He is
still staying with his parents in the same yard. It was also argued
on behalf
of the accused that he suffered a loss as a result of this
arrest in that he did not recover the money he expended to buy the
generator.
It was also submitted that the accused was a first
offender when it comes to crimes of dishonesty. The accused pleaded
guilty and
did not waste the court’s time.
[22]
As far as the offence is concerned, it is common cause that the
accused was convicted of a serious
crime that involves dishonesty. It
is a pernicious and malignant offence that is inimical to the values
and fibre of our society.
However, it must be balanced against the
personal circumstances of the accused and the other elements of the
triad. Society is
looking at the courts for their protection against
people who commit crimes. If the courts fail to deal appropriately
with criminals,
society will lose confidence in the courts and this
will prompt society to take the law into their own hands. It is
therefore incumbent
upon this court to impose a well-considered
sentence that strike a balance of the triad.
The
court must also bear in mind that the appellant must not be
sacrificed on the altar of deterrence. Whilst deterrence and
retribution
are legitimate elements of punishments, they are not the
only ones, or for that matter, even the overriding ones - See
S
v Scott-Crossley
2008
(1) SACR 223
(SCA) at para 35.
[23]
I have considered the personal circumstance of the accused, his
previous convictions as well
as arguments from both sides as recorded
and I am of the view that a sentence of twelve months imprisonment
which is wholly suspended
for a period of three years on condition
that the accused is not found guilty of contravening section 36 of
the General law Amendment
Act 62 of 1955 committed during the period
of suspension is appropriate in the circumstances.
ORDER
[24]
In the result, I propose the following order:
24.1
The sentence of twelve (12) months direct imprisonment imposed by the
court
a quo
on the appellant is set aside and replaced with
the following sentence:
24.1.1 The accused
is sentenced to twelve (12) months imprisonment which is wholly
suspended for a period of three years on condition
that the accused
is not found guilty of contravening section 36 of the General Law
Amendment Act 62 of 1955 committed during the
period of suspension
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
DOLAMO
J
JUDGE
OF THE HIGH COURT