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[2011] ZAGPJHC 215
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S v Kgosi (27/11) [2011] ZAGPJHC 215 (27 May 2011)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
High
Court Ref No: 27/11
Magistrates’ Serial No: 03/11
Date:27/05/2011
In
the review matter of:
STATE
versus
VUSI
VINCENT KGOSI
REVIEW JUDGMENT
MEYER
, J
[1] This
is a review in the ordinary course. On 20 November 2010, the accused
was found guilty of theft in the Magistrate’s
Court, Orlando.
The charge and evidence against him was that he intentionally and
unlawfully stole two transformers that were
the property or in the
lawful possession of Metrorail. This he did on 1 October 2010, at
New Canada in the district of Johannesburg.
[2] I
am not satisfied that the trial court exercised the discretion
bestowed upon it in imposing sentence properly and reasonably.
The
accused was unrepresented. Regrettably, the trial court did not
investigate the matter of an appropriate sentence for the
accused
fully and properly. The accused was 32 years old at the time when he
was sentenced on 31 January 2011. He is a first
offender. He is
unmarried and he has no children. He did piece work before he was
arrested and was maintained by his brother.
The accused had been in
custody since his arrest during October 2010. It appears from the
record before us (the J15 form) that
the accused was arrested on 1
October 2010.
[3] The
offence of which the accused was convicted concerned the theft by him
of two transformers that he placed in a ‘school
bag’. No
evidence was obtained relating to the value of the two transformers
and regarding the consequences of the theft
of such items. The
accused was nevertheless sentenced to three years imprisonment.
[4] Had
the accused not already been in custody for so long I would have set
the sentence aside and remitted the matter to the presiding
magistrate for a proper investigation into the matter of sentence.
Adv. Zeiss van Zyl S.C. of the Office of the Director of Public
Prosecutions: South Gauteng High Court, furnished me with an oral
review opinion for which I am grateful. I agree with him that
it
would be more appropriate in the particular circumstances of this
case to set aside the sentence imposed upon the accused and
to
replace it with one of a shorter period of imprisonment of which the
period of imprisonment not yet served by him is suspended
for a
period of three years on condition that he is not convicted of the
offence of theft committed during the period of suspension
for which
a sentence of direct imprisonment of at least six months is imposed.
[5] In
the result the conviction is confirmed and the sentence imposed by
the learned magistrate is set aside and replaced by the
following:
1. The
accused is sentenced to a period of imprisonment for one year.
2. The presently unexpired
period of this sentence of one year imprisonment is suspended for a
period of three years on condition
that the accused is not convicted
of theft committed by him during the period of suspension for which a
sentence of direct imprisonment
of at least six months is imposed.
3. This sentence is pre-dated
to 31 January 2011.
4. The accused is accordingly
to be released immediately unless he is also in custody in connection
with an unrelated matter.
WEPENER, J
[5] I agree with my brother
Meyer, J.
___________________
PA
MEYER
JUDGE
OF THE HIGH COURT
____________________
WL
WEPENER
JUDGE
OF THE HIGH COURT
27
May 2011