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2011
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[2011] ZAGPJHC 42
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S v Ndebele and Another (SS16/10) [2011] ZAGPJHC 42 (14 March 2011)
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO
:SS16/10
DATE
:2011/03/14
In
the matter between
THE
STATE
and
NDEBELE
AND ANOTHER
.
Accused
S
E N T E N C E
LAMONT J
: The two accused have
been convicted of the offences listed in the charge sheet, as
previously stated, in the course of convicting
them. I refused
a postponement to the accused, to enable them to obtain the services
of a probation office or social welfare
worker to provide an expert
report, for the reasons which are contained in the judgment on the
postponement application
Accused 1 is 36 years old, he is
single. He is the father of a six year old child, and lives
with the child and his girlfriend.
He is self-employed in a CC
which he owns. It conducts a business distributing stationery.
It is a relatively unsuccessful
enterprise in that the accused is
unable to draw a salary from it. The accused is in good health,
and has a previous conviction.
He was found guilty on
6 September 2004, of six counts of contravening
Section/Regulation 27(3) of Act/Ordinance 41 of
1987, in that he had
interfered with electrical apparatus on or about 6 February 2004.
The charges were taken together for
purposes of sentence, and he was
sentenced to R4 000 or 18 months' imprisonment, which was
totally suspended. He also
has a conviction for assault,
committed on 31 October 2006, he was sentenced to R150
fine.
Accused 2 is 30 years old; he is
single with two children by different women. One child is two years,
one is aged four years.
The two year old child, and accused 2's
girlfriend live with accused 2. The four year old child lives
with his mother.
At the time of the commission of the offences,
accused 2 was employed at South Deep Mine, earning a salary of some
R14 000 per
month. His health is good. Those are the
personal circumstances which are put forward in respect of the two
accused.
I am enjoined in considering
sentence, to consider society, the personal circumstances of the
accused, as well as the nature of
the offence. Insofar as the
considerations of society are concerned, there are a number of sub
factors, including prevention,
deterrence, retribution,
rehabilitation. Insofar as the nature of the offence is
concerned, consideration must be given to
the enormity of the
offence, the duration over which it was committed, and the actions of
the accused in relation to it.
Insofar as the needs of society are
concerned, evidence was led by the state, establishing that the theft
of electricity is a prevalent,
widespread crime. A number of
vending machines, similar to the ones used to perpetrate the current
offences, have been stolen
(approximately 58) of which only 18 have
been recovered. The machines in question are capable of
generating some R450 000
per month, each. The calculation
of the gross value of this is some R278 million.
In consequence of the skill of the
actual thieves, or their associates, it has been necessary for Eskom
to change the programmes
and manner in which electricity is sold by
these vending machines, in an attempt to limit the losses which are
suffered by Eskom.
The impact upon society, due to the high
cost of electricity, in consequence of this kind of activity is
notorious. So much
for the direct effect of this type of
conduct.
The accused have been convicted of
committing a series of offences over a lengthy period of time, in a
substantial amount. The amount
of money is some R10 million.
The time is to be counted in months. This was a sophisticated
operation directed towards
the sale and production of the vouchers in
question. This is apparent from the fact of the large number of
machines; it is no coincidence
that five were found in relation to
the activities of the accused.
Accused 1 and 2 are the senior
persons involved in a huge racket, as defined, and have been
convicted, and must be sentenced in
accordance with their conduct and
wrongfulness over the period. The amounts stolen are
approximately during the period of
February to May, R7 million in
Westonaria and R1.3 million in Sasolburg. The activities of the
accused have a direct economic
effect on the whole economy.
The interests of the community
dictate that persons who perform acts of this magnitude and over such
a long period of time, be punished
appropriately. The natural
indignation and repugnance of the court, for their crimes, must
appear fully in the sentence which
is imposed upon them. Not
only must the accused be punished appropriately, but the punishment
must represent an appropriate
deterrent effect for others.
The retributive impact of the
punishment upon the accused must weigh its proper place in the
balancing of all the elements of the
offence. If a sentence
which is too light is imposed upon the accused, members of the public
and accused persons lose their
respect for the judicial process. They
also become more likely to commit offences. Persons who weigh
up the commission of
an offence must not see the offence to be
economically worthwhile, in comparison with the punishment which they
are likely to receive.
The fact that there may in future be
a forfeiture order in respect of the proceeds of the offence is not
relevant to this consideration.
This is not to say that accused
persons must be punished with a sledgehammer. The punishment
for the accused must be individualised,
and must match each of their
actions appropriately. The fact that the crime which has been
committed does not involve violence,
and is what is colloquially
known as a white collar crime, in my view is not a feature to be
taken into account in the present
offence as an ameliorating factor.
White collar crime which results in
the increased cost to the public, of services which are made
available to the public, such as
electricity, do have as much an
impact on the poor, and result in the poor suffering. Poor people who
are entitled to the provision
of electricity. They are required to
pay more in consequence of the losses suffered by the manufacturers
and suppliers of electricity.
The fact that the accused are remote
from that impact does not in any way lessen the link between their
conduct and the directness
of the result.
The punishment of imprisonment, which
I propose imposing upon the accused, is just that, a punishment.
The persons in whose
custody they will be will furnish them with the
tools with which to carry on the business of living life in
accordance with the
law once they are released.
The nature of the offence is
extremely serious. However, I am conscious of the fact that the
accused should not be sacrificed on
the altar of deterrence.
What is required is a balancing of all the circumstances. In
balancing the circumstances of
the accused to the right of freedom,
it is my view that that balance weighs more in favour of imprisonment
than their right to
liberty.
Society demands the removal of the
accused from society, both as a punishment and to prevent them from
committing further offences.
In weighing these factors, as well
as the requirement of society that others be deterred, it is my view
that a lengthy period of
imprisonment should be imposed upon the
accused.
The duration over which the offences
were committed demonstrates a fixed and settled intention on the part
of the accused to perform
illegal acts in the pursuit of profit.
This similarly requires a lengthy period of imprisonment.
By reason of the previous convictions
of accused 1, it is my view that accused 1's sentence
should be more severe than
that of accused 2. He has previously
brushed with the law, and been involved in a series of offences,
while not of an identical
nature, of a nature involving tampering
with electricity apparatus.
The legislation, of which the accused
have been convicted in respect of count 1 and 2, is legislation
designed to assist in the
tracing and conviction of persons who are
generally extremely difficult to trace and convict. It is
usually, as it was put
by the state, the foot soldiers who are
captured and not the managers and promoters of the businesses.
In the present matter
managers of the business have been traced and
convicted.
I do not lose sight of the fact that
accused 1 alone is convicted of the second count. In my view
while the offences should
be charged separately, the punishment
should be dealt with on the basis of one continuous act.
It is possible to divide the charge
sheet into various groupings of counts. The first two counts
deal with the conducting
of an organised crime. Counts 3 to 7
deal with the theft of the cash dispensing units. Counts 8 to 6
521, 13 036 to
20 648, 28 262 to 28 311, 28 362 to 44 311 and 60 262
to 69 274 all relate to charges concerning the creation of the
vouchers which
represent credits. Counts numbers 6 522 to 13
035, 20 649 to 28 261, 28 312 to 28 361, 44 312 to 60 261 and 69 275
to 78
287 are all related to the theft of the electricity, in
consequence of the use of the vouchers.
I was invited to isolate each count
and impose a small sentence on all count, and then direct that each
of these counts should run
concurrently with the other counts.
In my view, all of these counts should be taken together, and
sentenced together.
Similarly I was invited, in respect of each
of the thefts of the cash dispensing units, to sentence
individually. In my view
there should be a globular sentence
imposed in respect of all of those counts.
It remains to state that I also
distinguish between accused 1 and accused 2, also on the basis of the
conviction of accused 2, only
in respect of count 1, for
participation, whereas accused 1 has been convicted both of
participation and management, count 2.
I accordingly impose the
following sentences on each of the accused.
Count
1, accused 1, 18 years' imprisonment. Count 1, accused 2, 15
years' imprisonment. Count 2, accused 1, 18 years'
imprisonment. Counts 3, 4, 5, 6 and 7, accused 1 and 2, 15
years' imprisonment. Counts 8 to 78 287, accused 1 and 2,
15
years' imprisonment. The periods of imprisonment imposed on
accused 1 in respect of count 2 up to and including 78 287
are to be
served concurrently with the sentence imposed on count 1. The
sentences imposed on accused 2 in respect of count
3 up to and
including 78 287 are to be served concurrently with the sentence
imposed on count 1.