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[2016] ZAGPJHC 381
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Tauetswala v S (A154/2016) [2016] ZAGPJHC 381 (3 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: A154/2016
In
the matter between:
TUMELO
TAUETSWALA
Appellant
versus
THE
STATE
Case
Summary: Criminal Law – Theft of articles worth R3 500
from car – Sentence - appropriate case where the appellant,
a
33 year old first offender, should be afforded an opportunity of
staying out of prison by suspending the whole of the sentence
imposed
on appeal – Sentence of 18 months’ imprisonment imposed
by trial court set aside and replaced with a sentence
of one year
imprisonment, wholly suspended for a period of three years on certain
conditions.
JUDGMENT
MEYER,
J (KLAAREN, AJ concurring)
[1]
Following his plea of guilty, the Regional Court, Kempton Park
convicted the appellant, Mr Tumelo Tauetswala, of one count of
theft. The charge against the appellant was that he, on 11
September 2015, stole two wheel arches to the total value of R3
500
from a Volkswagen Tiquan car that was parked at the Emperors Palace,
Kempton Park, which car was owned by or in the lawful
possession of
Ms Zonya Beukes. The appellant admitted that his intention was
to on-sell the wheel arches for the sum of R2
500. The
appellant, however, was arrested and the wheel arches were recovered
by the police before the intended sale had
taken place. On 18
February 2016, the appellant was sentenced to eighteen months’
imprisonment. This appeal,
with the leave of the trial court,
is against the sentence imposed upon the appellant.
[2]
The personal circumstances of the appellant that were presented to
the trial court were that he was 33 years old, a first offender,
married with a four year old child and employed by Dimension Data
earning a salary of R15 000 per month. In sentencing the
appellant the trial court paid lip-service to the principles
governing punishment and found as aggravating circumstances that
theft is highly prevalent in its area of jurisdiction and that the
appellant had ‘stolen out of greed and nothing else.’
[3]
By finding that the appellant had stolen out of greed the trial court
had misdirected itself. There was no evidence from
which such
inference could have been drawn. The fact that the appellant
was employed and that he earned a monthly salary
of R15 000 does not
give rise to such inference. His financial situation was not
explored and there was not a purposeful
enquiry into his means by the
trial court. Furthermore, the sentence imposed upon the
appellant is disproportionate to the
crime that he committed, the
interests of society and his personal circumstances. This court
of appeal is accordingly at
large to interfere with the sentence
imposed upon the appellant by the trial court.
[4]
Having due regard to the objectives of punishment, namely prevention,
retribution, deterrence and rehabilitation, and weighing
the personal
circumstances of the appellant against the seriousness of the crime
committed by him and the interests of society,
I am of the view that
this is an appropriate case where the appellant as a first offender
should be afforded an opportunity of
staying out of prison by
suspending the whole of the sentence which I propose to impose.
[5]
In the result the following order is made:
(a)
The appeal
succeeds.
(b)
The
sentence imposed by the Regional Court, Kempton Park is set aside and
replaced with the following sentence:
‘
The accused is
sentenced to one year imprisonment, wholly suspended for a period of
three years on condition that he is not convicted
of theft, robbery,
receiving stolen goods knowing it to have been stolen or an offence
under section 36 or 37 of the General Law
Amendment Act 62 of 1955
committed during the period of suspension.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
J.E.
KLAAREN
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 3 November 2016
Date
of judgment: 3 November 2016
Appellant’s
counsel: F Phamba
Instructed
by: Machete Attorneys, Kempton Park, Johannesburg
State
counsel: NP Serepo