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2011
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[2011] ZAGPJHC 92
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S v Jonga and Another (61/11) [2011] ZAGPJHC 92 (18 August 2011)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
REVIEW
REF
NO: 61/11
MAGISTRATES
COURT CASE NO: C/DH 381/2011
DATE:18/08/2011
In the matter
between
THE STATE
and
SHARON
JONGA
…...................................................................
ACCUSED 1
HENDRIK
MDTHETHE
….............................................................
ACCUSED
2
Automatic
Review in terms of s 304(1) of
Criminal Procedure Act 51 of 1977
-
Sentence – Shoplifting – Accused pleaded guilty -
Sentence of 12 months imprisonment imposed by court a quo –
appropriateness of - misdirections – sentence strikingly
inappropriate - on review sentence reduced to 14 weeks imprisonment.
Deportation
order – made without informing unrepresented accused of the
effect thereof - audi alteram partem rule violated
- order on review
set aside as an irregularity
J
U D G M E N T
VAN
OOSTEN J
[1]
This matter comes before me on automatic review in terms of
s 304
(1) of Act 51 of 1977.
[2]
The accused, having pleaded guilty, were convicted in the
Magistrates’ Court, Roodepoort of theft. They were each
sentenced
to 12 months imprisonment. The court
a
quo
further ordered that “both
accused be deported back to Zimbabwe after they served their term of
imprisonment and that s 49
(12) of Act 13 of 2002 be applied”.
They were further declared unfit to possess a firearm in terms of s
103 (1) of Act 60
of 2000.
[3]
Having read the record of the proceedings in the court
a
quo
a number of disquieting
aspects became apparent in respect of which I addressed an enquiry to
the Magistrate. The enquiry raised
a number of concerns on two
aspects, firstly, the appropriateness of the deportation order and
secondly, the sentence imposed.
The Magistrate furnished
supplementary reasons and the office of the NDPP has furnished an
opinion on the aspects I have raised.
[4]
Both accused are Zimbabwean nationals. During the trial after having
been convicted, when it became apparent that the matter
would be
remanded for the purpose of obtaining the record of the accuseds’
previous convictions, accused 1 applied for bail
“because back
home she has got a child, a 5 year old child”. The Magistrate
then put the following to her:
Madam
you are illegal in this country. You have no documentation
and
back home is in Zimbabwe.
Accused
1 then informed the Magistrate that she was in possession of a
passport to which the Magistrate responded that she had not
seen it.
Accused 1 repeated that she was in possession of a passport. The
Magistrate, however, simply ignored this and proceeded
to deal with
the request by informing the accused, with a reference to
s 60
of the
Criminal Procedure Act, that
“bail cannot be entertained”.
[5]
Having imposed sentence at the resumed hearing of the matter, the
Magistrate
mero motu
made
the following order:
The
court orders also that the accused be deported back to Zimbabwe
after
they served their term of imprisonment and that
section 49
(12) of
Act
13 of 2002 be applied.
[6]
The deportation order was made in violation of the
audi
alteram partem
rule: neither of
the accused were afforded the opportunity to address the court on
this aspect, nor were the provisions of s 49
(12) of the Act
explained to the accused, who it should be noted were unrepresented.
[7]
As rightly conceded by both the Magistrate and the NDPP the
proceedings concerning the deportation order were accordingly not
in
accordance with justice and the deportation order accordingly falls
to be set aside on the basis of an irregularity.
[8]
I turn now to the sentence that was imposed. In the consideration of
sentence the Magistrate took into account the accused’s
personal circumstances. Those were the following: accused 1 was 28
years old and accused 2, 38 years old at the time of sentencing.
The
accused were engaged in a relationship from which 3 children, aged 8,
5 and 19 months were born. Accused 1 earned an income
of
approximately R1 000,00 a month, and accused 2, R800,00 a month.
This to both of them was their first brush with the law.
[9]
The further reasoning of the Magistrate in regard to sentence reveals
a number of misdirections. Those are the following:
The
Magistrate remarked that both accused were “illegal in this
country” and “have no documents to be here”.
What was seemingly overlooked was accused 1’s statement at
the previous hearing to which I have already referred, that
she was
in possession of a passport. No request was made for her to
produce the passport. Accused 2 was not asked at any time
whether
he was legally in South Africa nor was there any evidence to that
effect.
The
Magistrate took “judicial notice” of the following
evidence that presumably had been led before her in another
case:
Irma
Pretorius, the loss control manager here at Shoprite Checkers that
came and testified. Just for the area of Roodepoort district
R6.8m
lost in six months, in Sandton it was R9m something. She stated that
between R7000,00 and R8000,00 is lost every month,
every day due to
theft at Shoprite Checkers at Westgate Mall.
Not only was the Magistrate not permitted
to take judicial notice of the evidence referred to, the accused were
also not afforded
the opportunity to address this aspect.
The
Magistrate then proceeded to remark as follows:
You
came from Zimbabwe. You entered this country illegally. You took up
employment illegally, taking employment from South African
citizens,
abusing the hospitality of the South Africans by walking into our
stores to steal. This is how you repay them.
There is no evidential support for any of
the remarks made by the Magistrate. Regrettably they seem to have
clouded the judicial
mind resulting in the absence of a balanced
assessment of all relevant factors in the consideration of an
appropriate sentence.
The
Magistrate in her judgment on sentence as well as the supplementary
reasons furnished in response to the enquiry I have
referred to,
placed reliance on a number of cased involving convictions of
shop-lifters where sentences of direct imprisonment
were confirmed
by this Court on review. The mere reference by the Magistrate to
the names of these cases and the sentences
imposed in each of them,
without examining the factors in each case relevant to the sentence
that was imposed, is singularly
unhelpful. It is well established
that sentences ought to be individualised and differentiated (See
S
v MN
2011 (1) SACR 286
(ECG) para [6])
.
Lastly,
the family of the accused, one must assume from the answers given
by accused 1 in response to questions posed to her
by the
Magistrate, offered to assist in paying a fine. This was summarily
dismissed by the Magistrate which resulted from a
misconception of
the nature of the enquiry where payment is considered as a
sentencing option. See
S v Van
Rooyen en ‘n Ander
1994 (2) SACR 823
(A) 827f.
[10]
The sentence of 12 months imprisonment in the circumstances of this
case moreover, in my view, is excessive and not in accordance
with
the sentence I sitting as a court of first instance, would have
passed. The offence of, as it is commonly referred to as shoplifting,
its seriousness (the total value of the items stolen was R605,94) and
alarming prevalence as well as the soaring costs in combating
the
evil are all factors meriting proper consideration. On the other hand
the accused were both first offenders, they pleaded guilty
and showed
some remorse. Accused 1 when asked by the Magistrate why she had
stolen the items, explained, albeit not entirely satisfactory,
that
had stolen them “to give them to my baby, the milk and the
pampers..” This obviously did not include the other
item stolen
which is mentioned in the charge sheet as “1X Cute D or
chocolate to the value of R227,99”. Accused 1 moreover
is the
mother of 3 children, one of them of tender age and wholly dependent
on motherly care. Bearing in mind all the above factors,
as also the
fact that the accused had been in custody since the date of their
arrest on 30 January 2011, I consider a sentence
of fourteen weeks
imprisonment as proper and fitting. Inclusive of the time spent
awaiting finalisation of the trial the total
period of imprisonment
accordingly adds up to five months. In view hereof I, on 29 June
2011, ordered the immediate release of
the accused from prison. By
then the accused had been incarcerated for a total period of five
months.
[13] In the
result, I make the following order:
The
sentence imposed by the court below is set aside and in its stead
is substituted with the following sentence:
“
The accused are each sentenced to 14
weeks imprisonment.”
The effective date of the sentence is 24
March 2011.
The
deportation order made by the court below is set aside.
__________________________
FHD VAN
OOSTEN
JUDGE OF
THE HIGH COURT
I agree.
__________________________
L WINDELL
ACTING
JUDGE OF THE HIGH COURT